How UK manipulated RTI law to deny Lanka chance to counter war crimes allegations



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Norwegian Ambassador Thorbjørn Gaustadsæther and Chairman, Sri Lanka Press Institute Kumar Nadesan at the inauguration of ‘Empowering Citizens with RTI’ on Tueaday (May 8) at the Institute of Policy Studies (IPS). Norway funded the two-day conference. (pictures by Sujatha Jayaratne)


By Shamindra Ferdinando


Having adopted the Freedom of Information Act, way back in 1970, Norway is now ranked 67 in the Global Right to Information Rating, maintained by the Center for Law and Democracy.


Sri Lanka enacted the Right to Information Act, No. 12 of 2016, a year after the change of the war-winning Rajapaksa administration. The UNP, and a section of the civil society and media, campaigned for the right to information (RTI) law though they couldn’t convince the previous government to introduce the Right to Information Act. However, since the adoption of the right to information law, the Sirisena-Wickremesinghe administration has quickly reached third position in international rankings. The government and all those who had campaigned for RTI law consider it a key good governance administration’s achievement.


According to the Global Right to Information Rating, the top 10 countries are Mexico, Serbia, Sri Lanka, Slovenia, India, Albania, Croatia, Liberia, El Salvador and Sierra Leone.


The UK is ranked 35, way ahead of Norway, while the US stands at 56.


The Sri Lanka Press Institute (SLPI) has received financial backing from Norway to organize a two-day conference on the RTI, themed ‘Empowering Citizens with RTI – the first year’ in Colombo on May 8 and 9, 2018. The event marks the first anniversary of the implementation of the Right to Information Act in Sri Lanka and the World Press Freedom day.


The following is part of a press release issued by the SLPI, on May 3: "The two-day conference, which will be held at the Institute of Policy Studies, Independence Avenue, Colombo 07, will be covering a series of thematic sessions on risk and safety of information seekers, privacy data protection, the role of civil society and media, future of RTI law and technicalities in information disclosure. RTI experts from Norway, India, Mexico, Bangladesh, Pakistan and Myanmar, along with Sri Lankan experts, from the RTI Commission, advocates from the civil society organizations, good governance promoters and leading journalists are scheduled to speak at the thematic sessions.


Representatives of ministries, civil society organizations, and internationally and locally renowned RTI activists will attend the conference. This will create a platform for civil society organizations, the public sector and the media to interact in creating the way forward of RTI in Sri Lanka.


Right to Information (RTI) Act was put into effect in Sri Lanka on 03 February, 2017, and the bill was passed by the Cabinet of Ministers in August, 2016. By organizing the international conference the SLPI hopes to capture lessons learnt of the RTI practice in the country within the first year it was implemented."


Colombo-based NGOs (civil society) groups, including Center for Policy Alternatives (CPA), National Peace Council (NPC) and Transparency International Sri Lanka (TISL) pushed for the RTI law. Sri Lanka’s RTI provides for citizens or organizations, comprising more than 75 per cent of Sri Lankans, to seek information from those NGOs receiving funds from overseas. Colombo Telegraph in a revealing report headlined Colombo Telegraph challenges CPA under the RTI Act-Colombo NGOs yet to appoint Information Officers! posted on March 3, 2017, pointed out the failure on the part of some of those who had campaigned for the RTI law to comply with it. (CT report can be accessed https://www.colombotelegraph.com/index.php/colombo-telegraph-challenges-cpa-under-rti-act-colombo-ngos-yet-to-appoint-information-officers/)


UK Freedom of Information Act to Sri Lanka’s rescue


In spite of propagating the value of the RTI law here, the Sirisena-Wickremesinghe administration and those foreign-funded NGOs never wanted to take advantage of information that had been obtained by a foreigner under the Freedom of Information Act 2000 (FOIA) UK to successfully counter unsubstantiated war crimes allegations directed at Sri Lanka. Michael Wolfgang Laurence Morris (Baron Naseby) is his name. As the SLPI, with the backing of Norway, mark the first year anniversary of the RTI law, it would be pertinent to examine Sri Lanka’s pathetic failure to exploit crucial information obtained by Lord Naseby with the intervention of the Information Commissioner’s Office, UK. Sri Lanka could have successfully used the information obtained by Lord Naseby to counter lies propagated by the UN, Western powers, some NGOs and a section of the Tamil community. But Sri Lanka did not. Instead of using Lord Naseby’s disclosure to its advantage, the incumbent government is struggling to suppress available information. Perhaps, the SLPI-Norway latest venture can discuss Sri Lanka’s failure to properly use information obtained through some other system as the latter facilitated peace talks between Sri Lanka and the LTTE, in the run up to the eelam war IV.


Norway intervened in Sri Lanka on the invitation of the then President Chandrika Bandaranaike Kumaratunga and the LTTE in 2001. The LTTE made an assassination bid on Kumaratunga in Dec. 2001 while Norwegian-facilitated secret negotiations were taking place. Norway entered the scene formally with the signing of a Ceasefire Agreement, on Feb. 21, 2002, between Sri Lanka and the LTTE. The LTTE quit the negotiating table in April 2003. The LTTE launched an all-out war in August 2006 expecting a swift and decisive victory. In spite of initial success on both the northern and eastern theaters, the armed forces turned the tide quickly and eventually brought the LTTE to its knees in May 2009.


In March 2010, the UN, on the basis of unsubstantiated accusations, alleged that Sri Lanka massacred over 40,000 Tamil civilians.


In Oct. 2015, Sri Lanka co-sponsored Geneva Resolution 30/1 directed against the country.


In Oct. 2017, Lord Naseby disclosed in the House of Lords how the UK, a current member of the Geneva-based United Nations Human Rights Council (UNHRC) suppressed information that could have cleared Sri Lanka. Sri Lanka Foreign Ministry ignored Lord Naseby’s disclosure, based on wartime dispatches (January-May 2009) from the British High Commission in Colombo. Instead, initially, the Foreign Ministry sought to dismiss Naseby’s revelations. The British High Commission, too, made a pathetic bid to brush aside the House of Lords’ revelation. Basically, Lord Naseby, on the basis of the UK High Commission dispatches, asserted there was no basis for the over 40,000 death toll claim and most importantly Sri Lanka political and military leadership had no intention of deliberately targeting civilians on the Vanni east front.


The role of UK Information Commissioner’s Office


The Foreign and Commonwealth Office (FCO) made a desperate bid to deprive Lord Naseby of required information. Obviously, the FCO realized that the revelation of wartime dispatches could jeopardize the high profile UN project meant to replace Sri Lanka’s Constitution. Geneva declared, in 2016, that Sri Lanka should have a new Constitution. In fact, the change of government, in January 2015, was to facilitate the UN project, spearheaded by the US-UK combine. The Constitution making process is still in progress though the government is in deepening political turmoil.


It would be pertinent to examine the circumstances leading to Lord Naseby’s disclosure in the House of Lords, in Oct. 2017. Let me discuss the developments on the basis of what the UK Information Officer’s Office called a ‘decision notice,’ dated May 4, 2016, that dealt with Lord Naseby’s efforts to secure information from the FCO.


Lord Naseby made his request to FCO on Nov. 6, 2016, a year after the Sri Lanka co-sponsored Geneva Resolution against Sri Lanka, and seven years after the successful conclusion of the war. The FCO, on Dec. 3, 2014, informed Lord Naseby that it had the required information though it needed time to consider the Conservative Party politician’s request. Obviously Naseby’s request rattled the FCO. On January 5, 2015, FCO told that his request couldn’t be granted. Lord Naseby, on January 14, 2015, requested for an internal review of the decision. The FCO informed Lord Naseby, on Feb. 19, 2015, that the decision couldn’t be changed. Lord Naseby complained to FCO on March 16, 2015. The FCO on May 7, 2015 reiterated its original decision to deprive Lord Naseby of the requested information. Interestingly, the FCO, on Dec. 21, 2015, offered to provide a section of the previously withheld documents claiming that the move was made possible due to the releasing of Office of the United Nations High Commissioner for Human Rights (OHCHR) report on the investigation on Sri Lanka on Sept. 15, 2015. However, the FCO withheld a substantial section of the requested documents on the basis of Sections 27 (1) (a), 31 and 41 of FOIA.


Having received a part of the requested documents, Lord Naseby had raised concerns with the Information Commissioner’s Office that the FCO could be still holding documents that could be released. Subsequently, the FCO released three more censored documents on Feb. 23, 2016. The three documents were dated April 7, 25 and 26, 2009.


The FCO wouldn’t have released any documents if not for Lord Naseby seeking the intervention of the Information Commissioner’s Office. Lord Naseby got in touch with the Information Commissioner’s Office, on June 10, 2015, five months after the last presidential election brought an end to the Rajapaksa rule. Following Rajapaksa’s defeat, President Maithripala Sirisena, as agreed in the run up to the presidential poll, invited UNP leader Ranil Wickremesinghe to form a new government. Violating all parliamentary norms, Wickremesinghe was sworn in as the Prime Minister, in spite of having the backing of less than 50 members. The SLFP-led UPFA had a staggering two-thirds majority in parliament with the SLFP group alone comprising 126 members.


If Naseby’s disclosure was made before Jan 8, 2015 prez poll…


Had the classified Sri Lanka wartime British High Commission dispatches come to the public domain before the last presidential poll, the UNP-led coalition against twice President Mahinda Rajapaksa could have suffered irreparable damage.


The British dispatches could have been successfully used to counter war crimes allegations directed at the Rajapaksas. Interestingly, Lord Naseby made his move to secure vital documents from the FCO, two weeks before Rajapaksa announced early presidential polls on the completion of four years of his six-year term. The British would have certainly realized the danger in releasing their own diplomatic cables that challenged the very ‘regime change’ operation they were involved in. Those dispatches could have been used to easily challenge or perhaps even destroyed the case being build against Sri Lanka on the basis of unproven war crimes accusations. One-time LTTE mouthpiece, the Tamil National Alliance (TNA) threw its weight behind the UNP operation in the guise of seeking an end to the murderous Rajapaksa regime responsible for tens of thousands of Tamil deaths. The 2010 UNP-led coalition for the presidential poll, too, was built on the same basis. Don’t forget the British knew that over 40,000 civilians didn’t perish on the Vanni east front when war-winning Army Chief Gen. Sarath Fonseka confronted President Rajapaksa at the January 2010 polls.


On the basis of unproven war crimes accusations, the UNP warned the Sri Lanka electorate that a victory for Rajapaksa could result in crippling international sanctions. Those who had campaigned for the Rajapaksas ouster in 2014-2015 propagated the lie that only Maithripala Sirisena victory could save Sri Lanka. The British refrained from releasing wartime British High Commission dispatches until the conclusion of the August 2015 parliamentary polls.


Sri Lanka never examined the British strategy. Interestingly, the British declared that the UK wanted a change of government in Sri Lanka. That declaration was made at the Geneva sessions. The British project was simple. It was essentially meant to appease the UK citizens, of Sri Lankan origins, to secure their support at elections. No less a person than one-time British Foreign Secretary David Miliband is on record as having explained to UK based US diplomat how he played politics with Sri Lanka issue during the last phase of the war.


Those who had been demanding that Sri Lanka address accountability issues never faulted the government for not seeking clarification from the British. They feared the British dispatches could clear Sri Lanka and place the high profile international project in difficulty.


Former British Premier David Cameron went to the extent of threatening to haul Sri Lanka up before an international war crimes tribunal unless President Mahinda Rajapaksa addressed accountability issues before the March 2014 Geneva sessions. The British ultimatum was given in Colombo on the sidelines of the Commonwealth Heads of Government Meeting (CHOGM) in November, 2013. Premier Cameron insisted that Sri Lanka would have to face the consequences, in spite of it being at the helm of the Commonwealth, unless it addressed accountability issues.


Cameron couldn’t have been unaware of the British High Commission dispatches from Colombo. Cameron certainly did.


The FCO declined to disclose dispatches on the basis that the revelation could jeopardize UK relations with Sri Lanka. It was nothing but a blatant lie. The FCO, at the behest of its political masters, suppressed dispatches and censored some of those released to Lord Naseby as they certainly exposed their lie. The disclosure would have surely strengthened UK’s relations with Sri Lanka at the expense of its own domestic political arrangements with the Tamil Diaspora and also undermined the US political project to ensure a Sri Lanka government within its orbit.


According to Information Commissioner’s Office, the FCO censored sections of the British High Commission dispatches that were handed over to Lord Naseby under 27 (1) (a) of FOIA on the basis that full disclosure could prejudice relations between the UK and Sri Lanka. But the reality was that the disclosure could have certainly cleared the misunderstanding between two Commonwealth member states. If the disclosure could have undermined UK-Sri Lanka relations, the UK headquartered Global Tamil Forum (GTF) would have done so immediately after the conclusion of the conflict. In fact, citizens, of the US, Canada, France, Norway, Australia, Germany, Sweden and South Africa (of Sri Lanka origin) would have sought wartime dispatches from their diplomatic missions in Colombo or New Delhi, authorized to represent a particular country.


Had the FCO released the relevant documents before the last presidential poll or the August 2015 parliamentary election, the Yahapalana coalition would have suffered at both hustings.


TNA responsibility


Perhaps those foreign RTI experts and their local counterparts invited for the two-day event in Colombo, should examine the Freedom of Information Act 2000 (FOIA) UK in relation to Sri Lanka post-war reconciliation process. Although the war was brought to a successful conclusion, nine years ago, reconciliation couldn’t be achieved due to allegations regarding massacre of Tamils on the Vanni east front, in 2009. Lord Naseby called for a review of Geneva Resolution following his disclosure in the UK parliament in Oct. last year.


The TNA hasn’t responded to The Island queries regarding Lord Naseby’s call to amend the Geneva Resolution 30/1. The Island submitted the following questions to TNA and Opposition Leader R. Sampanthan, on Nov. 27, 2017, and repeatedly reminded the Opposition Leader’s Office of the delay on its part to respond to the queries. The following questions were posed to Sampanthan: Have you (TNA) studied Lord Naseby’s statement made in the House of Lords on Oct. 12, 2017, What is TNA’s position on Naseby’s findings?, Did TNA leaders discuss Naseby’s assertion among themselves? Did TNA respond to MP Dinesh Gunawardena’s statements in parliament on Naseby’s disclosure? And did TNA take up this issue with the UK High Commissioner James Dauris?


(To be continued on May 16)


 
 
 
 
 
 
 
 
 
 
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