Tuesday, 5 July 2016

TNA’s revelation in Washington as regards foreign judges stuns govt



by Shamindra Ferdinando

The four-party Tamil National Alliance (TNA) Friday (July 1) welcomed a hard-hitting statement, issued by UN High Commissioner for Human Rights, Prince Zeid Ra’ad Al-Hussein, in respect of war time and post-war accountability issues in Sri Lanka. The Human Rights HC reiterated the call for international participation in the proposed war crimes probe, on the basis of Resolution 30/1, adopted on Oct 1, 2015.

The TNA comprises the Illankai Thamil Arasu Kadchi (ITAK) and three former terrorist groups namely TELO, PLOTE and EPRLF formed by the government of India in the ‘80s. The TULF, too, had been part of the grouping at the onset of the LTTE-TNA relationship, though it subsequently quit. TULF, leader V. Anandasangaree, told the writer, some time back, that he quit the alliance as he didn’t want to contribute to the LTTE’s despicable strategy.

In a statement issued on the afternoon of July 1, TNA declared: "We reiterate that justice for crimes committed, in the past, by both sides, is a necessary precondition to meaningful reconciliation. In this regard, we reiterate the importance of the full implementation of operative paragraphs 6 and 7 to ensure trust and credibility."

The TNA didn’t include the two operative paragraphs in its statement.

Let me reproduce operative paragraphs in Resolution 30/1, titled ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, unanimously adopted by the 47-member Geneva-based United Nations Human Rights Council (UNHRC). Sri Lanka co-sponsored the resolution.

Operative paragraph 6: "Welcomes the proposal by the Government of Sri Lanka to establish a Commission for Truth, Justice, Reconciliation, and Non-Recurrence; an Office of Missing Persons; and an Office for Reparations; and stresses the need for these mechanisms to be independent, impartial, and transparent, as well as, led by individuals known for professionalism, integrity and impartiality."

Operative paragraph 7: "Welcomes also the commitment by the Government of Sri Lanka to ensure that each transitional justice mechanism has the freedom to obtain assistance, including financial, material and technical assistance, from international partners, including the Office of the High Commissioner for Human Rights."

It would be pertinent to keep in mind the TNA’s actions are fully supported by the UK headquartered Global Tamil Forum (GTF) who spearheaded the overseas campaign, leading to Sri Lanka’s humiliation in Geneva.

The TNA also asserted that Resolution 30/1 represented the solemn commitment of Sri Lanka to its own citizens, and to the Tamil people, who, the grouping represented, and must be implemented.

The TNA has conveniently forgotten the circumstances under which the grouping regained the right to represent the Tamil-speaking people.

Until the Sri Lankan military, eradicated the LTTE leadership, on the banks of the Nanthikadal lagoon, in May, 2009, the group remained the sole representative of Tamil- speaking people.

In the run-up to eelam war IV, in August, 2006, the LTTE received the TNA’s recognition. The TNA worked closely with the LTTE during this period with some of its members of parliament attending passing out parades of child soldiers.

Having won the April 2, 2004, parliamentary polls, with the help of the LTTE, the TNA represented and promoted the interests of the group, in parliament. The European Union Elections Observation Mission alleged the LTTE-TNA relationship and explained how R. Sampanthan’s outfit benefited through terrorism. There had never been a previous instance of a recognized political party being accused of receiving the support of a terrorist group, in the country.

The EU report, released on June 17, 2004, described the LTTE as the primary source of violence, at the April 2 general election. The EU monitoring mission’s head, John Cushnahan, didn’t mince his words when he declared that the LTTE’s primary aim was to garner a huge majority for its proxy, the TNA, to project the group as the sole representative of Tamil speaking people. In fact, the EU endorsed what TULF chief V. Anandasangaree had been saying throughout the campaign. Unfortunately, the then government, the international community, and even the Nordic truce monitoring mission, didn’t take any notice. Anandasangaree was ignored. The UNP refused, at least, to condemn the LTTE for making an attempt on the life of T. Maheswaran, Jaffna District candidate. Anandasangaree urged the government and the Opposition not to accept the TNA. The LTTE proxy had no right to be in parliament (TULF leader applauds EU for unmasking LTTE proxy––The Island of June 23, 2004).

The EU said: "Firstly, the LTTE intended that no other rival Tamil party (or Tamil candidate from the mainstream political alliances), to the TNA, would be able to claim to represent Tamil interests. A chilling message, to this effect, was sent early in the campaign when a UNP candidate and an EPDP activist were murdered. Incidents, such as this, seriously restricted the right of the parties other than the TNA to campaign freely in the Northern and Eastern Districts. During the 2004 elections, the major incidences of violence were perpetrated by the LTTE, whereas at the earlier elections, the primary source of the violence (although not all), were the two largest political parties."

A statement issued by the TNA, in the run-up to the April 2 general election, highlighted its alliance with the LTTE. Unfortunately, the UPFA failed to exploit the environment to its political advantage. It simply ignored the rapidly developing situation. The TNA declared: "Accepting the LTTE’s leadership as the national leadership of ‘Tamil Eelam’ Tamils, and the Liberation Tigers, as the sole and authentic representative of the Tamil people, let us devote our full cooperation for the ideals of the Liberation Tigers’ struggle with honesty and steadfastness. Let us endeavour determinedly, collectively as one group, one nation, one country, transcending race and religious differences, under the leadership of the LTTE, for a life of liberty, honour and justice for the Tamil people."

TULF veteran Anandasangaree suggested that those who monitored the poll should have called the Elections Commissioner to annul the results. Anandasangaree said that all monitoring groups should have joined hands in exposing the LTTE/TNA alliance (Monitors should have called for fresh poll in North and East-TULF––The Island of June 24, 2004).

The TNA remained mum on the EU report. Senior TNA members refused to discuss the issue, though The Island sought their opinion on several occasions. However, they privately acknowledged that the report would never be taken up with the EU, though it caused severe embarrassment to the party. The TNA admitted that it wasn’t in a position to challenge the EU, hence its decision to remain mum (TNA mum on EU polls terror report––The Island of July 4, 2004).

Colombo – based Western diplomatic missions never raised the issue with the TNA.

During the second week of November, 2005, the TNA instructed Tamil speaking people to boycott the Nov. 17, 2005 presidential polls to facilitate the then Prime Minister Mahinda Rajapaksa’s victory. The TNA issued instructions, in this regard, at the behest of the LTTE. No less a person than UNP Chairman Malik Samarawickrema told the writer of the TNA and the LTTE depriving UNP candidate Ranil Wickremesinghe of certain victory. Had that happened, the conflict wouldn’t have ended in annihilation of the LTTE’s conventional military capability.

The TNA remained firmly with the LTTE until the very end. At the behest of the LTTE, the TNA campaigned both here and abroad to force an end to the ground offensive. The TNA refrained from, at least, publicly urging the LTTE to give up human shields and halt forcible recruitment of children. The TNA leadership refrained from intervening, on behalf of those who had been wounded, fighting for the LTTE. The LTTE prevented wounded cadres from taking advantage of the ICRC run operation to evacuate them from Puthumathalan.

The TNA remained silent as the LTTE forced the entire population, living west of the Jaffna-Kandy A9 road, to accompany the retreating fighting units across the main overland supply route. The TNA had been part of the overall LTTE strategy. The TNA leadership suddenly remembered the suffering of those trapped in the Vanni after troops cleared the last pockets of resistance.

For some strange reason, the previous government never raised the issue of the TNA’s accountability and its relationship with the LTTE, when the Geneva-based United Nations Human Rights Council (UNHRC) intervened in Sri Lanka. The writer, on several occasions, sought an explanation from the previous administration in respect of TNA’s accountability. The Rajapaksa administration never inquired into the matter in spite of the TNA going all out against the war-winning government on the basis of unsubstantiated war crimes allegations. The Rajapaksa administration had nearly seven years to conduct a comprehensive inquiry into the LTTE-TNA alliance and also efficiently counter unsubstantiated accusations. Unfortunately, the then government failed, pathetically.

The TNA subsequently established a solid partnership with the UK headquartered Global Tamil Forum (GTF) to pursue an efficient campaign. Their project culminated in January, 2015, with Western powers facilitating the ouster of the then President Mahinda Rajapaksa to pave the way for the Geneva Resolution meant to initiate war crimes probe.

Those loyal to former President Rajapaksa still remained thoroughly disorganized. They lacked a clear vision to counter accusations, as well as comprehend the on-going project to haul Sri Lanka before a hybrid court. The Island, in its June 28, issue reported TNA Jaffna District MP, M.A. Sumanthiran, declaring that the government of Sri Lanka, the US and the TNA reaching an agreement on foreign judges on a war crimes court. The story headlined ‘Constitution no bar to foreign judges in war crimes court-TNA’ was based on a statement issued by the TNA, on June 16. Although that statement had been on public domain, the Joint Opposition didn’t respond until The Island highlighted the issue.

Had the TNA remained silent, on the agreement, the country wouldn’t have heard about it. In fact, the TNA statement was meant to pressure the government, and to remind the Yahapalana leadership that it wouldn’t give up, or dilute arrangement, over foreign judges.

MP Sumanthiran declared that they had reached a tripartite consensus in respect of foreign judges, defence attorneys, investigators, etc., in a Sri Lankan judicial mechanism before the UNHRC unanimously adopted Resolution 30/1.

Attorney-at-law Sumanthiran told a recent American ‘Congressional Caucus for Ethnic and Religious Freedom in Sri Lanka’, in Washington, that the government of Sri Lanka, the TNA and the US had been involved in the negotiations leading to the agreement.

The declaration was made in the presence of Sri Lanka’s Ambassador in Washington, Prasad Kariyawasam.

MP Sumanthiran stressed that the resolution was moved in Geneva following an understanding that the participation of foreigners wouldn’t be contrary to Sri Lanka’s Constitution. Declaring that he had been personally involved in the negotiations, with the United States of America also participating in that particular process, Sumanthiran said: "There were some doubts created, as to whether the Constitution of Sri Lanka would allow for foreign nationals to function as judges and we went into that question, clarified it, and said yes they can".

Sumanthiran told the Congressional Caucus that the resolution adopted in Geneva, had been negotiated and they settled for a hybrid model though they originally asked for an international inquiry.

The TNA didn’t find fault with The Island coverage of the issue. The government, too, didn’t dispute the reportage.

MP Sumanthiran’s revelation caused turmoil with attorney-at-law, Chrishmal Warnasuriya, strongly countering Prince Al-Hussein assertion that Sri Lanka’s judiciary lacked credibility to undertake war crimes inquiry. Warnasuriya, who had played a high profile role in the Opposition campaign to ouster the Rajapaksas, didn’t mince words when he rejected foreign judges, in a domestic judicial probe, under any circumstances.

National Freedom Front (NFF) leader Wimal Weerawansa wrote to President Maithripala Sirisena seeking a clarification regarding the TNA heavyweight’s declaration in Washington.

Dr Wasantha Bandara, on behalf of the Federation of National Organizations (FNO), too, sought a clarification from the government regarding MP Sumanthiran’s declaration. The Foreign Ministry has remained mum in spite of the TNA MP making unprecedented claim in the presence of Ambassador Kariyawasam.

Obviously, the Sirisena-Wickremesinghe government appeared to have misjudged the post-presidential poll situation in Geneva. UPFA General Secretary, Mahinda Amaraweera, a few months ago, declared that President Sirisena and the government had resolved the Geneva issue and, therefore, those who had been warning of an impending war crimes probe now need not be worried. President Sirisena and Prime Minister Wickremesinghe, too, declared that foreign judges wouldn’t be included. Instead of confirming their public stand, Al-Hussein and Sumanthiran had clearly stated that the participation of foreign judges remained a key to a credible judicial process.

In the run-up to the presidential and parliamentary polls, in January and August, 2015, respectively, the country was told that the threat of war crimes probe would end with the ouster of the then President Mahinda Rajapaksa. Yahapalana leaders proudly declared that as the faith in the judiciary had been restored, therefore the issue of foreign judges was irrelevant.

They have been proved wrong. Whatever the post-presidential election polls understanding between the UNP-led coalition and the TNA that helped bring Maithripala Sirisena into power, the LTTE ally remains committed to internationally discredit Sri Lanka and the Rajapaksas. The TNA underscored its readiness to do whatever necessary to oust the Rajapaksas when it backed war-winning Army Chief Gen (retd.) Sarath Fonseka’s presidential candidature at the January 2010 presidential polls. The TNA objectives at that election should be examined against the backdrop of engineering Ranil Wickremesinghe’s defeat at Nov, 2005 presidential.

None of those politicians, who had been fighting separatist sentiments, have so far bothered to study the TNA. The Sirisena-Wickremesinghe government shouldn’t forget that the TNA demands for international participation, in proposed war crimes probe, while being the recognised Opposition in parliament. The TNA has also forgotten that it wouldn’t be in this position today if not for the battlefield defeat of the LTTE and UNP machinations in parliament. In addition to the TNA, many have, for reasons best known to them, forgotten the difficult war fought for nearly 30 years.

One time Justice Ministry Secretary Dr Nihal Jayawickrama recently declared that the country lacked the experience and expertise to undertake such a task on its own, while castigating the judiciary, the military and law enforcement agencies. The outspoken former official, who played a controversial role in Mrs Bandaranaike’s United Front government, strongly justified calls for foreign judges to lead the inquiry. Dr Jayewickreme even lost his civic rights as a result of his role in that government after it was defeated soundly by the UNP in the July ’77 general election.

"Without accountability, there can be no reconciliation in any society. The hybrid court, which the UN High Commissioner for Human Rights recommended for Sri Lanka, is a unique element in the human rights based approach to transitional justice in a post-conflict situation. Comprising international judges, prosecutors, lawyers and investigators, a hybrid court is designed to deal with those who bear the greatest responsibility for series of crimes, arising from, or during the conflict, such as war crimes or crimes against humanity, including sexual crimes and crimes against children. President Maithripala Sirisena has repeatedly asserted that under no circumstances will he agree to the participation of foreigners in the accountability process in Sri Lanka. The President has claimed that Sri Lanka has an independent judiciary which is quite capable of addressing the issues of accountability without any foreign assistance. It is perhaps time for the President’s advisers to brief him on the real position."

Jayawickrama faulted successive governments for categorizing the conflict as a situation caused by terrorism. Alleging that successive governments had failed to restore good governance, Dr Jayawickrama declared: "On the other hand, there is the issue of justice, reparation and reconciliation, which has been brought to the fore through the actions of a succession of Presidents who set out to resolve a political and human rights problem, conveniently dubbed "the terrorist problem’, through the application of military power."