The Uva election campaign can be described as by far the most insipid and lacklustre election campaign in recent decades. Even in Jaffna and Vavuniya, experiencing a democratic resurgence after a many years, the fight was far from heated. Polling has been abysmally low in Jaffna.

Of the provincial and local government elections that took place yesterday, the most important individual to watch is Mudiappu Remedius – a complete newcomer to politics but the TNA’s Mayoral candidate for Jaffna. The TNA is still the principal political force in Jaffna with eight of the nine parliamentary seats in the district. Even in Vavuniya, the TNA has five of the six MPs. If Remedius fails to deliver, then that will signal a sea change in northern politics with the TNA going into decline.

In Vavuniya, where almost everybody (PLOTE, EPDP, UNP, TULF) seems to have a base, it will be interesting to see what the distribution of seats will be like. One can safely predict that in Vavuniya, the TNA is definitely going to lose their 5/6th preeminence. Another thing to observe is how well Minister Vadivel Suresh has served the government in the Badulla district.

 At the Uva election campaign nobody was really interested in the number of appearances put in by UNP leader Ranil Wickremesinghe as it would not have made any difference anyway. If this same attitude persists at the presidential and parliamentary elections that will follow the southern provincial council election, the UNP has had it. Nevertheless it must be said that Wickremesinghe’s speaking skills seem to have improved considerably.

One of the points he made during the Uva campaign would have done Ronnie de Mel proud. Ronnie de Mel, after joining the Chandrika Kumaratunga government, campaigned for the PA saying "The UNP gave you only Rs 40 to the US Dollar, but our government gives you Rs 80!" And indeed to those who earn in dollars, the fact that they got more rupees for their dollars, did count! In Uva, Wickremesinghe went around saying that one of the conditions applying to the IMF loan was that it could not be used for development work! (And indeed that’s true in a way, because the IMF does not fund projects – that’s the work of the World Bank) So he argued that the UPFA government does not have money to develop Uva, and that it’s only the UNP that can get the foreign aid needed to develop the country. It could well be that the UNP leadership expects the EU to suspend GSP+, thereby giving them a leg to stand on during the presidential elections.

 That brings us to the most significant political issue of the day, the extension or otherwise of the GSP+ trade concession given to Sri Lanka by the EU. One of the Sri Lankan bodies that made submissions to the investigative committee appointed by the European Commission to look into the question of extending or suspending the GSP+ facility to Sri Lanka was the Centre for Policy Alternatives (CPA). Indeed it was the CPA that started the whole debate in Sri Lanka last year by publishing an article in the Sunday Leader arguing that Sri Lanka has not fully incorporated the provisions of the International Covenant on Civil and Political Rights in local legislation and therefore, this country does not qualify for an extension of GSP+. 

The business community affected by the uncertainty surrounding GSP+ and some politicians consider the CPA to be the main advocate against the extension of GSP+. Indeed they have been very visible and vocal in this regard. Even the leader of the opposition, basically adopted the position of the CPA, and even wrote to the EU’s Commissioner for External Relations, Ms Benita Ferrero-Waldner, saying that a constitutional amendment was necessary to incorporate the ICCPR fully into local legislation and that he was willing to provide his votes in parliament to get the necessary two thirds majority for the amendments. Not stopping at writing to Ferrero-Waldner, Wickremesinghe even went to see her in Brussels to push what was essentially the position of the CPA.

 That is an indication of the influence that the CPA has had on this issue. The CPA was also one of the many bodies that sent submissions to the three member investigative team that was appointed by the European Commission. The EU investigative team apparently accepts submissions from virtually anybody. But there are questions that need to be raised about some of these interested parties that have been making submissions. The CPA for instance, is not a civil society body in Sri Lanka. It’s an outfit maintained by foreign funding from sources that include the EU itself.  So in effect, the EU has been paying academics in Sri Lanka millions of rupees to make submissions to itself.

Academy for Education Development (US based); ARD-USAID; Canadian International Development Agency (CIDA); Diakonia (Swedish); European Union (EU); Ford Foundation; Forum of Federations (Canadian); Gesellschaft fur Technische Zusammenarbeit (GTZ); International Budget Project (US based); International Media Support  (Danish); National Democratic Institute (USA); NORAD; OXFAM; Save the Children in Sri Lanka; Swiss Mission in Sri Lanka; The Asia Foundation; The Berghoff Foundation for Conflict Studies in Sri Lanka; The Friedrich-Naumann-Stiftung fur die Freiheit; The International Social Survey Programme (Germany/USA); UNICEF; UNDP; UNHCR and USAID.

To this list has to be added the Freidrich Ebert Stiftung, which has co-sponsored the publication of the CPA’s GSP+ documents in October 2008. No one getting funding from these foreign sources can be considered independent, especially in a situation where the recipient sends submissions to one of these dispensers of largess itself. All these foreign bodies have their own agendas and the local recipient of their largess has to toe their line.

For instance if you get money from the Forum of Federations (Canada), you have to toe their line on federalism. Your intellectual freedom is of necessity restricted. In the case of UN bodies like the UNDP and UNHCR, it’s not really the member states of the UN and of its affiliated bodies that decide on who the recipients of funds in the various countries are. That’s done by the officials of these bodies. Many of the officials of the various UN bodies tend to be swayed by what they think will be the thinking of the rich western countries. We saw that happening in the UNHRC recently when the UN Human Rights Commissioner Navi Pillai continued to talk of a human rights probe on Sri Lanka even after the members of the UNHRC voted overwhelmingly against it. She was in effect taking the side of the defeated minority and not the victorious majority because it is the rich defeated minority that contributed most to UN funds and in effect kept the body going. Such officials will dispense largess to organizations only if they are like minded and will toe their line. So there is a cozy relationship between western funding agencies, international civil servants who dispense funding and their local level ‘partners’.   

 Transparency is unheard of in the transactions that take place among these ‘partners’. Nobody knows how these funding agencies select their local partners. The criteria seems to be based on who will do their bidding most efficiently and nothing else. The officials of the EU itself has chosen the CPA as a local partner by some non-transparent procedure and they now accept submissions made by their own partners and apparently see nothing wrong in the process. When the EU gets submissions from such sources, what they will get is what they like to hear.

 When I asked the CPA for a copy of the submissions they made to the three member committee appointed by the European Commission, I was given a copy of a book titled GSP+ and Sri Lanka: Economic Labour and Human Rights Issues  and I was told that the paper in that book written by Rohan Edirisinha and Asanga Welikala with the title GSP+ and the ICCPR: A Critical Appraisal of the Official Position of Sri Lanka in respect of Compliance Requirements was what was sent to the three member committee as the submissions of the CPA. The thrust of the CPA’s argument is that the constitution of Sri Lanka needs to be amended in order to bring it into line with the International Covenant on Civil and Political Rights and to qualify for an extension of GSP+.

This Covenant, as I have pointed out previously in this column, is not rocket science. It’s a very basic document that incorporates some of the very simple and basic rights that we in Sri Lanka have come to take for granted and have enjoyed from British Colonial times, such as freedom from slavery and so on. What the CPA has done is to take each provision of the ICCPR and see whether it has been incorporated in the Sri Lankan constitution in its fullest sense. Some of their findings can be summarized as follows.

1. The CPA argues that the article in the ICCPR which prohibits the death penalty from being imposed for crimes committed by minors below the age of 18 has not been incorporated in Sri Lankan law because the code of criminal procedure here only stipulates that a death sentence cannot be passed on anyone below 18. So the CPA argues that if someone is a minor when the crime is committed but due to delays in the judicial procedure, is over 18 when the sentence is pronounced, the death penalty can be imposed on this person according to Sri Lankan law.

 2. They also argue that the immunity granted to the president of Sri Lanka under the constitution goes against the ICCPR provision which requires that an ‘effective remedy’ be available to those whose rights have been violated. The argument of the CPA’s counsel was that if an act or omission of the president results in the infringement of someone’s rights, such person cannot initiate legal proceedings against the president on account of the provisions giving him immunity.

 3. Another argument was that the ICCPR has an absolute and non-derogable prohibition on retroactive criminal liability, but that in Sri Lanka, this can be subject to certain limitations under the Sri Lankan constitution in matters involving national security. (Including the emergency regulations of the executive). Retroactive criminal liability refers to the passing of legislation declaring a certain act a criminal offense after it has been committed, but which was not a criminal offense at the time the act was committed.

 4. The CPA has also taken issue with a provision in Chapter 3 of the Sri Lankan constitution which is the fundamental rights chapter, that stipulates that "All existing written and unwritten laws shall be valid and operative notwithstanding any inconsistency with the fundamental rights declared and recognized by the constitution". The CPA argues that because of this provision inter alia that outdated laws relating to land and succession to land that are discriminatory against women remain legally valid even though they may run contrary to the fundamental rights enshrined in the constitution itself.

 The whole submission on GSP+ prepared by Rohan Edirisinha and Asanga Welikala has arguments of similar nature. All these no doubt would have been ideal topics for debate in the opinion page of The Island. But to discuss this kind of thing with the livelihoods of nearly 300,000 poor rural women hanging in the balance is ridiculous. If you take that argument about the death penalty, everybody knows that even though the death penalty exists on paper, it has not been implemented for over three decades and is not likely to be implemented either. It’s not implemented in the case of those who were adults when the crimes were committed much less those who were minors.

When that Muslim girl Rihana from the eastern province was condemned to death in Saudi Arabia because a baby in her care died, the argument put forward by Sri Lanka was that she was below 18 when the incident took place and therefore should be looked at with compassion. Everybody went to town on it. Even film star Ranjan Ramanayake said that if he had won the Sirasa dancing stars competition, he would have spent all the prize money on Rihana’s defense. Given that background, what are the chances of anyone in this country who was a minor at the time a crime was committed being given the death sentence?

 As for the point about the immunity granted to the president depriving anybody of a remedy against a violation of fundamental rights, that is purely in the realm of conjecture. When the Supreme Court had asked the counsel representing the CPA to name an instance where a person aggrieved due to the infringement of his fundamental rights had been deprived of a remedy on account of the immunity granted to the president, he had been rendered speechless. Nothing of the sort had ever happened and CPA itself admits that because of the Water’s Edge judgment, the president can be held liable for various omissions and commissions while in power. Moreover the CPA itself notes that despite the immunity clause, the Supreme Court has issued notice on the president over the delay in implementing the 17th amendment.

Even though the CPA argued that retroactive criminal liability was possible in Sri Lanka, when the SC asked the CPA’s counsel to cite an instance when parliament had enacted a law or an emergency regulation had been promulgated by the executive in the interests of national security, to declare an act a criminal offence after it had been committed, the counsel had once again been speechless. All these concerns raised by the CPA are in the realm of conjecture and the hypothetical. Even that clause in the fundamental rights chapter of the constitution validating all pre-existing laws should be considered on a case by case basis, as and when a pre-existing law comes into conflict with the fundamental rights mentioned in the constitution. If they don’t, then those pre-existing laws should be allowed to remain as they are. It would be certainly an interesting exercise for some researcher to go into the voluminous fundamental rights litigation over the past three decades to see where and when these pre-existing laws have come into conflict with the fundamental rights mentioned in the constitution.  

 In any event, none of these issues should be looked at in terms of extending a vital trade concession. The World Trade Organisation would be shocked to find out that the extension of vital trade concessions to ‘vulnerable and dependent’ countries like Sri Lanka now depends on such legalistic INANITIES. The CPA has been combatively defensive of its ‘hypothetical’ exercise. They argue that "In constitutional democracies, constitutional construction and adjudication is very often undertaken on the basis of hypotheses and the prospective consequences of measures". The latter point is the main issue for the present columnist as well – the prospective consequences of measures.

What is remarkable is that in the submission made by Edirisinha and Welikala to the three member investigative committee appointed by the European Commission, they have not given consideration to the prospective consequence of the withdrawal of GSP+. The question can be asked as to why they are so unconcerned about the consequences of withdrawal of GSP+ when they seem to be so concerned even about extremely remote or non-existent possibilities of the human rights of people being violated due to minute lacunae in the law. Basically, if one really wants to pick holes in the laws of a country, this can be done in regard to any country in the world, including Europe and the USA. This cannot possibly be made grounds for depriving Sri Lanka of a vital trade concession on which the livelihoods of so many people depend.

 The World Trade Organization has been trying to establish world trade on objective criteria and to minimize the intrusion of subjectivity in to trade relations. Obviously, this objectivity is not to the liking of the European powers who would like to direct trade on more subjective criteria so that they could make and break nations at will. This is probably the reason why they pay academics from target nations to make submissions to itself, pressing for the discontinuation or continuation of trade concessions based on subjective non-trade related criteria. The precedent set in Sri Lanka if it is allowed to go unchallenged, could become a precedent for doing the same to other countries. When the suggestion to initiate a human rights probe against Sri Lanka came up at the UN Human Rights Council, many were surprised to hear even countries that usually shun the limelight making very strongly worded statements in Sri Lanka’s favor. They knew that if they stood by and allowed a precedent to be created, none of them would be able to tackle law and order situations in their countries.

 This GSP+ issue is also of a similar nature even though most countries don’t know the inherent dangers as there are only 16 recipients of GSP+. In my view, the Director of Commerce should prepare a comprehensive dossier on the GSP+ case in Sri Lanka and send that to his counterparts in as many countries as possible to alert them to possible dangers. There are also questions concerning the transparency of the investigative process against Sri Lanka in the European Commission. While its true that since GSP+ is a new instrument and the European Commission itself is groping in the dark with regard to investigative procedures, there are some basic needs relating to transparency that need to be addressed. I have perforce had to address yet another latter to the European Commission on this matter. The letter is as follows.

This is further to my letter concerning the continuation of GSP+ privileges for Sri Lanka. Nobody in Sri Lanka knows what is going on in Europe with regard to the GSP+ investigation against Sri Lanka. While it’s true that the government refused to co-operate in any investigation, the government is not the only interested party in this matter. This whole exercise is ostensibly to provide greater human rights to the people of Sri Lanka than what exists at present, even though I can’t see how this objective is to be attained by destabilizing the entire economy with ‘investigations’ and worse, suspending GSP+, rendering up to 300,000 of poor rural women jobless.

 Be that as it may, the need of the hour is to make the investigative process more transparent as the people of Sri Lanka have a right to know what is happening with regard to this investigation. In the submissions made to you by the Centre for Policy Alternatives, a Sri Lankan organization receiving funding from the EU, they have referred to the ‘closed and secretive law making processes’ in Sri Lanka. The CPA has in fact made the pointed criticism that according to the Sri Lankan constitution, when the President of the Republic asks the Supreme Court for a legal opinion, that opinion is reported only to the President and not made public. They also take issue over the fact that when the President asks the Supreme Court for an opinion, the proceedings will be held in private unless the court itself decides otherwise. The CPA condemns this as "a culture of governmental secrecy and convenience at odds with such requirements of modern notions of participatory democracy as transparency and accountability of the governmental decision making process".

 Their assumption naturally is that the EU’s way of doing things is very different. In view of this, our request to you is to make the whole investigative process transparent by providing to this newspaper:

a) The terms of reference given by the European Commission to the three member committee investigating Sri Lanka; and

b) Copies of all written submissions made to this committee and electronic copies of all oral submissions made to it.

I would be most obliged if the above can be sent as a matter of urgency,  addressed to the undersigned,  to Upali Newspapers Ltd, No: 223 Bloemendhal Road, Colombo 13, Sri Lanka under registered cover or by courier.

 Yours sincerely,