Tuesday, 10 July 2018

A new Constitution proposed to attract foreign investment

US—TNA consensus:



In a farewell call on July 5, outgoing US Ambassador Atul Keshap told TNA leader and leader of the Opposition R. Sampanthan that he was honoured to benefit from his wisdom. Keshap tweeted; “I share his positive vision of a unified, peaceful, reconciled, democratic Sri Lanka with equal rights and opportunity for all of its citizens. Both the US and the TNA are reluctant to acknowledge that because of reconciliation the former gained its rightful place in politics in May 2009 in the wake of the annihilation of the LTTE, which received TNA recognition as the sole representative of the Tamil speaking people.

By Shamindra Ferdinando

Have you ever heard of a country changing its Constitution to attract foreign investment? We were recently told how a new Constitution could bring in fresh investment and receive more economic benefits if it adopted a new Constitution.

Thanks to a statement issued by the four-party Tamil National Alliance (TNA) soon after the outgoing US Ambassador Atul Keshap met TNA leader and Opposition Leader R. Sampanthan last Thursday (July 5), the diplomat’s advice is in the public domain.

The meeting took place at the office of the Leader of the Opposition in Colombo. It would be important to peruse the TNA statement verbatim: "Expressing his views on the current state of affairs, Sampanthan pointed out that the Government is yet to accomplish most of its commitments to the international community. The expectations of the international community, in the best interest of the people of Sri Lanka, has not been fulfilled by the Government of Sri Lanka.

"Highlighting the commitments made by the Sri Lankan Government in the co-sponsored resolution adopted at the United Nations Human Rights Council, in 2015, Sampanthan said the Office of the Missing Persons was established after a long delay, the Reparations Bill is not yet passed, there had been no steps taken to address the accountability issues, the Commission on Truth, Justice, Reconciliation and non-Recurrence has not been constituted, the Constitutional process took a positive start but there seems to be a delay in taking it forward.

"Given the fact that there had been plenty of work done, around the framing of a new Constitution for over 25 years, I don’t see any justifiable reasons for delay in this. Our primary interest is in the best interest of the country, and everyone in this country will benefit from a new Constitution. Mustering a two-third Majority in Parliament need not be that difficult to adopt a new Constitution.

"Vast majority of the Tamil People who live all over the country, including the North and the East, want a solution within a united undivided Sri Lanka. There are sections of people not substantial but vocal who adopt a hardline view, but the only way to silence them and keep them away from negatively influencing the community is to deliver on the promises. We have been absolutely reasonable in our demands. If the Government does not deliver the Tamil people are not going to be second-class citizens in this country.

"The Ambassador pointed out that as far as the United States is concerned that the UNHRC Resolution remains operative and it is fundamental for several bilateral relationships. Further, the objectives of the country should remain positive in order to achieve peace and reconciliation. The positive image that the Government of Sri Lanka has in the international stage should not be taken for granted. Sri Lanka will be able to attract more investors and will have more economic benefits if it adopts a new Constitution. Further, the United States of America will remain fully engaged with the progress made by the Sri Lankan government in the future. Sampanthan was also thanked for his support during Keshap’s tenure as the Ambassador.

"Sampanthan appreciated the role played by the Ambassador and his team and the US State Department in the past with regard to Sri Lanka and appealed that the same level of engagement should continue with all parties in the future.

Along with Sampanthan, TNA spokesman and Jaffna District parliamentarian, M.A. Sumanthiran, was also present at the meeting while the Ambassador was accompanied by Deputy Chief of Mission Robert Hilton and Political Officer Joanna Pritchett.

Civil society on the need for new Constitution

Although various interested parties have given a range of reasons to convince the public of the need for a Constitution, Ambassador Keshap’s assertion is certainly unprecedented and silly. His claim that a new Constitution would attract fresh investment is nothing but a calculated attempt to deceive the public. It would be pertinent to mention that Ambassador Keshap who took over the US mission in August 2015 never publicly asserted that a new Constitution could bring in fresh investments.

In the wake of the electoral debacle experienced by the UNP and the SLFP at the Feb. 10, 2018, Local Government polls, Purawesi Balaya explained the electorate voted against the political parties due to the Sirisena-Wickremesinghe administration’s failure to introduce a new Constitution. Purawesi Balaya asserted that primarily two reasons contributed to the massive drubbing at the countrywide polls. In addition to the failure to introduce a new Constitution, Purawesi Balaya asserted that the UNP and the SLFP suffered for want of tangible measures to punish those responsible for crimes and corruption. Co-convenor of the influential civil society grouping, Gamini Viyangoda, declared that the public never asked for economic relief. Viyangoda said so addressing the media at Center for Society and Religion (CSR), Maradana. The writer was among those journalists present on that occasion where Viyangoda asserted that the Feb. 10 vote reflected the public anger at those who protected the murderers and the corrupted.

Both Viyangoda and Saman Ratnapriya, also co convenor of Purawesi Balaya, discussed how the failure to introduce political reforms jeopardized the government. They never indicated that the Constitution could have had attracted new investments and economic benefits in case parliament introduced a new Law. In fact, the TNA or foreign-funded Non Governmental Organizations (NGOs) must have been really surprised by Ambassador Keshap’s declaration.

Would you believe a new Constitution could attract fresh investments against the backdrop of massive treasury bond scams involving tainted primary dealer Perpetual Treasuries Limited (PTL) perpetrated in Feb 2015 and March 2016?

Recent revelation as regards the PTL funding the Law Asia Conference 2016 organized by Bar Association of Sri Lanka (BASL) to the tune of Rs 2.5 mn during President Counsel Geoffrey Alagaratnam’s tenure as its President underscored ground realities. The US embassy is fully aware of the impact of treasury bond scams on the Sri Lankan economy. In spite of officially promising, in May 2015, to help the Sirisena-Wickremesinghe administration to recover funds stolen allegedly by the Rajapaksas, the US remained mum.

The US turned a blind eye to the Feb 2015 bond scam. The US never publicly indicated its displeasure the way the UNP handled growing public agitation over the massive fraud. Instead, the US encouraged the government and the TNA, one-time LTTE ally, to proceed with a high profile project to introduce a new Constitution. Obviously, the US response encouraged bond racketeers. They perpetrated the second far bigger scam in March 2016, six months after Sri Lanka, at the behest of the US, co-sponsored Geneva Resolution 30/, severely inimical to her interest.

In the run-up to the 2015 January presidential polls, a change of government was touted as the panacea for Sri Lanka’s ills. The UNP and a section of the SLFP, in the national unity government, pursued whimsical policies until they were brought down to the ground in the second week of Feb this year. The electorate, in no uncertain terms, rejected the ‘yahapalana ‘ policies lock stock and barrel. Megapolis Minister Patali Champika Ranawaka recently declared that the Local Government polls defeat had ruined the SLFP. Ranawaka predicted that the same fate would befall the UNP in case that party suffered defeat at the next election. The JHU stalwart didn’t specify what that election would be though the government is hell bent on putting off the Provincial Council polls for obvious reasons.

Ambassador Keshap seems to be confident that the public could be tricked by propagating how a new Constitution would bring in new investments.

Perhaps, the media should seek clarification from the Governor of the Central Bank, Dr. Indrajith Coomaraswamy, whether a new Constitution could help the government to attract new investors. Coomaraswamy wouldn’t have been invited to take over the Central Bank, in mid 2016, in the wake of the far bigger second treasury bond scam involving Arjuna Mahendran. The Singaporean did the unthinkable, he ‘raided’ the institution under his care.

Geneva recommends new Constitution

Ambassador Keshap and the TNA chief seem to have conveniently forgotten the circumstances under which the Geneva-based United Nations Human Rights Council (UNHRC) recommended a new Constitution on the basis of unsubstantiated war crimes allegations. Unfortunately, the Joint Opposition (JO) loyal to war-winning former President Mahinda Rajapaksa never bothered to examine the high profile US – TNA project. The JO is yet to do so even after the New York Times engaged in a special operation, recently, to humiliate former President Rajapaksa as a recipient of Chinese funding for his 2015 re-election bid.

In accordance with the overall Geneva plan, the UNP, cleverly succeeded in bringing in the JO into the Constitutional making process though nationalist organizations strongly urged the former President not to do so. For some strange reason, the JO remains in the process though opposition heavyweight Wimal Weerawansa several months ago quit the constitutional making operation.

Although, the Geneva project has been seriously delayed, obviously, it is on track. Recent TNA statement is evidence that the party and the US remained confident in somehow introducing a new Constitution.

Let me reproduce verbatim what outgoing Geneva human rights chief Zeid-Hussein stated in respect of new Constitution in his June 28, 2016, address in Geneva:

= Significant momentum has been achieved in the process of constitutional reform. On March 10, 2016 Parliament adopted a resolution establishing a constitutional assembly to draft and approve a new constitution or amendments by the end of 2016, which will then be put to a referendum in 2017. The drafting process has benefited from an inclusive public consultation process overseen by a Public Representations Committee that received submissions and held district level consultations in the first quarter of 2016.

= From a human rights perspective, the constitutional reform process presents an important opportunity to rectify structural deficiencies that contributed to human rights violations and abuses in the past and reinforce guarantees of non-recurrence. These could include a more comprehensive Bill of Rights, stronger institutional checks and balances, enhanced constitutional review, improved guarantees for the independence of the judiciary, effective individual complaints mechanisms and greater direct enforceability of international human rights treaty. Also, as demonstrated by other countries’ experience, is the strengthening of civilian oversight over the military in the form of multiple oversight and accountability mechanisms over defence policy, discipline and promotion, budgeting and procurement. The new Constitution will also be important in facilitating the establishment of the transitional justice mechanisms envisaged by the Government, for instance the criminalization of international crimes in national law or allowing for the involvement of international judicial personnel. At the same time, the High Commissioner hopes that the political process of adopting constitutional changes will not involve tradeoffs and compromises on core issues of accountability, transitional justice and human rights.

Thanks to treasury bond scam, the project has been seriously affected. The unprecedented fraud and the resultant battle between an irate President Maithripala Sirisena and the UNP caused irreparable damage to the coalition. The rift certainly weakened the coalition though the government steadfastly backed the Geneva project so much so it refrained from making representations on the basis of revelations made in the House of Lords in 2017 Oct, UK, which roundly countered war crimes allegations-the basis of war crimes inquiry in addition to a brand new Constitution.

The House of Commons revelations were made in Oct last year. The disclosure made on the basis of wartime dispatches from the British High Commission in Colombo (January-May 2009) confirmed classified US dossier on the Vanni death toll (Aug 2008-May 13, 2009) and war time US Defence attache Lt. Colonel Lawrence Smith’s high profile statement in early June 2011.

In spite of nationalist organizations and a section of the media demanding the Sirisena-Wickremesinghe government appeal to the UNHRC to revisit the resolution, the government declined. Instead, it reiterated its commitment to the Geneva process much to the disappointment of the vast majority of people, who cherished armed forces triumph over the LTTE.

Perhaps, the TNA and its Western allies never really wanted an international war crimes inquiry or hybrid war crimes probe as envisaged in Geneva Resolution 30/1. May be, the yahapalana rulers, civil society and the NGOs, too, never expected foreign judges to hear cases in respect of accountability issues. The whole exercise played in and out of parliament here and in Geneva was meant to pressure Sri Lanka to accept a new Constitution as a way out of the problem. Much propagated war crimes allegations over the years were cleverly used to build a case against Sri Lanka before a resolution passed and a new Constitution recommended on the pretext of addressing post-war national reconciliation process. A new Constitution seems to be the overall objective of the US-led exercise. The US is obviously confident that the Geneva -based "cesspool of political bias" is the best suited to divide Sri Lanka on ethnic lines through the introduction of a new Constitution. In case, such a project is beyond the capacity of treasury bond racketeers, they’ll seek an amendment to dilute executive powers vis a vis Provincial Councils to enable the Chief Ministers to take control of the regions. Sri Lanka is at crossroads as the country prepares for presidential election 2019-one and half years away.

Tuesday, 3 July 2018


Examination of US project in the wake of NYT claim on China backing MR



By Shamindra Ferdinando

Gampaha District MP Harshana Rajakaruna, on behalf of the United National Party (UNP), recently called for the appointment of a presidential commission to inquire into Chinese funding of the then President Mahinda Rajapaksa’s re-election bid in January 2015.

Rajakaruna said so at a special press briefing at Sirikotha. Rajakaruna was one of the UNP lawmakers exposed by the Presidential Commission of Inquiry that probed the Central Bank Treasury Bond scams involving tainted primary dealer, Perpetual Treasuries Limited (PTL). Rajakaruna is one of those lawmakers who had been in touch with PTL owner, Arjuna Aloysius, in spite of being a member of the parliamentary watchdog committee, the Committee on Public Enterprises (COPE). Whatever, his relationship with Aloysius, his right to call for a presidential probe on Chinese funding, at the 2015 presidential polls, cannot be dismissed.

In spite of Rajapaksa categorically denying, last Sunday (July 1), receiving USD 7.6 mn from China Harbour Engineering Company Ltd (CHEC) in support of his re-election bid, the need to examine foreign funding cannot be ruled out.

‘How China got Sri Lanka to cough up a port’ under the byline of New Delhi-based, one of New York Times (NYT) South Asia correspondents Maria Abi-Habib resulted in heavy attacks on former President Rajapaksa. Habib had been a roving Middle East correspondent with the Wall Street Journal before she joined NYT in 2017

Let me reproduce verbatim NYT on Habib: In 2012, she was a finalist for the Daniel Pearl Award for an investigation into atrocities at Kabul’s main military hospital, which led to a Congressional probe into two senior American generals leading NATO’s military efforts in Afghanistan. The investigation resulted in the resignation of three-star U.S. general and sweeping reforms at the hospital. She has also documented the flow of former Guantánamo Bay detainees to the battlefields of Syria, the grooming of child soldiers by Islamic State, and U.S. efforts to counter Hezbollah.

"Ms. Abi-Habib began her journalism career in 2007, covering the Persian Gulf from Dubai, where she also contributed to coverage revealing high-level corruption across several companies linked to senior Emirati officials.

A graduate of Concordia University in Montreal, she grew up shuttling between the suburbs of Washington, D.C., and her father’s ancestral village in the mountains of Beirut."

NYT credited Keith Bradsher and Sui-Lee Wee from Beijing, and Mujib Mashal, Dharisha Bastians and Arthur Wamanan from Sri Lanka contributing to Habib’s piece.

Parliament should examine whether CHEC funding had been utilized by the Rajapaksa Campaign at the 2015 presidential election, in addition to other funding sources at the same election.

There cannot be any dispute over the urgent requirement to investigate Chinese funding of the Rajapaksa Campaign but it should not be restricted only to the Beijing investing in political parties here. In fact, Habib and her team can inquire into US funding and the circumstances under which such financial support was made available at the 2015 presidential election. It would be pertinent to mention that the NYT received government assistance to establish disbursement of CHEC funding to the tune of USD 7.6mn in the run-up to the 2015 presidential poll.

US funding at 2015 prez poll

Having failed to oust Mahinda Rajapaksa at the January 2010 presidential poll, the US sustained a high profile project to thwart him securing a third term. Rajapaksa was determined to secure another term. The war-winning President utilized his overwhelming parliamentary majority to pass the controversial 18th Amendment Bill on September 8, 2010, with 161 Members of Parliament voting for and 17 against the bill. The new law enabled President to seek re-election any number of times. In addition to that, the 18 Amendment resulted in the following: The 10-member Constitutional Council was replaced with a five-member Parliamentary Council; Independent commissions were brought under the authority of the President; It enabled the President to attend Parliament once in three months and entitles him to all the privileges, immunities and powers of a Member of Parliament other than the entitlement to vote. In short, it is all about giving the President absolute power.

In January, 2013, at the behest of President Rajapaksa, parliament impeached the then Chief Justice Dr. Shirani Bandaranayake and she was removed by the President. Among those who voted for Bandaranayake’s removal was the then SLFP General Secretary Maithripala Sirisena. Obviously, the US resented the possibility of Rajapaksa extending his rule and worked overtime to change the administration.

The US State Department, in November 2016, revealed it had invested USD 585 mn promoting democracy across the globe in 2015. In the foreword of the State Department report, the then Secretary of State John Kerry declared: "in an era of diffuse and networked power, we (the US) are focusing on strengthening partnerships with civil society, citizen movements, faith leaders, entrepreneurs, innovators, and others to promote democracy and good governance and address gender-based violence."

Kerry identified Sri Lanka as one of three ‘democracy projects’ the US had funded: "We have supported important democratic gains in Sri Lanka, Nigeria, and Burma."

USAID’s 2017 Congressional Budget Justification in relation to adding Complex Crises Fund (CCF) dollars: "In the past year, CCF funds have provided critical support for programmes in Ukraine, Burkina Faso, Central African Republic, Somalia, Sri Lanka, Burma, and Lebanon. In Sri Lanka and Ukraine, CCF funds bolstered political transitions."....We have supported the slow and steady work to help countries all over the world build open and responsible institutions that deliver for their citizens, and quickly seized emerging opportunities to support free and fair elections in Burma and Sri Lanka."

Thanks to the US State Department the US role in the 2015 change of government is in the public domain. For some strange reason, former President Rajapaksa, his advisors, the Joint Opposition or Rajapaksa front, the Sri Lanka Podujana Peramuna (SLPP) never raised the issue. In fact even after the NYT report, the Rajapaksa team refrained from taking up the issue. Rajapaksa’s over 1,400-word statement issued on Sunday (July 1) conveniently refrained from at least referring to the US funding in 2015.

In case President Sirisena appoint a Commission of Inquiry to probe campaign finances, it can also inquire into US funding and establish how funds were disbursed and who the recipients were. In fact, the writer, some time back, queried from the US embassy in Colombo as to the amount, out of USD 585, made available to its Sri Lanka project. The US embassy didn’t respond to The Island query.

Sri Lanka elections monitors never responded to the US State Department revelation. The former Election Department, the National Election Commission (NEC), civil society or the media didn’t realize the need to examine the US State Department revelation. They never felt a need to examine foreign funding even after one-time Times of Ceylon journalist Hassina Leelarathna disclosed further US funding made in support of the US project here between two national elections in 2015 - presidential in January and parliamentary in August. The following section was taken from Bid to derail ‘One Belt, One Road’ published in August 9, 2017 issue of The Island: "Recent sensational revelation made by former Times of Ceylon journalist Hassina Leelarathna, in respect of USAID making available urgently required funds to the tune of US 3.4 mn, to the UNP-led 100-day administration, in the run-up to the August 2015 parliamentary polls, is the latest illustration of US intervention. The funds had been meant to provide, what the USAID called, visible support to the newly elected administration. US made fresh commitments though the USAID in spite of contemplating a lesser role for the agency here a few years ago.

The US-based Leelarathna, who co-edited with her husband Deeptha, the first Sri Lankan newspaper published in the US years ago, made the disclosure on the basis of information she had obtained from USIA on the basis of the Freedom of Information Act (FOIA). Accordingly, USD 3.4 mn had been released from Complex Crises Funds (CCF) which was meant to make available USD 40 mn in support of governance, rule of law and economic reform in Sri Lanka.

Civil society responsibility

The writer raised the US funding issue with civil society activists on live television programmes and media conferences. The Island took up this issue seriously though the overall reportage of the US funding cannot be considered satisfactory.

Key civil society grouping Purawesi Balaya recently called for an investigation into NYT report. Co-convenors of the outfit, Gamini Viyangoda and Saman Ratnapriya and Ven. Dambara Amila pushed the government to take tangible measures on the NYT report. They addressed the media at the Center for Society and Religion (CSR). The writer raised the foreign funding issue at Purawesi Balaya briefings, twice some time ago. But, Purawesi Balaya never urged the government to probe foreign funding at the 2015 presidential election. However, Purawesi Balaya made an intervention close on the heels of the NYT report.

The civil society owed an explanation why it did not call for a government probe much earlier when the US revealed large scale funding in the run-up to the 2015 presidential poll to bring the UNP to power. If one fifth of the USD 585 mn spent in 2015 for political projects had been allocated for Sri Lanka, recipients here received over USD 125 mn. Compare the US funding received by Sri Lanka with Chinese money amounting to USD 7.6 mn.

During a live debate on Hiru ‘Balaya’ anchored by Sudewa Hettiarachchi with Purawesi Balaya representatives Viyangoda and Ratnapriya, the writer suggested that the civil society should seek an explanation from the US embassy as regards US funding. The writer stressed that those demanding accountability, good governance and transparency couldn’t turn a blind eye to foreign funding.

Obviously, New Delhi played a significant role in the US project. No less a person than US President Obama made reference to New Delhi’s role in the region. Addressing a distinguished gathering at the Siri Fort Auditorium, New Delhi, on 27 January 2015, Obama declared India could play a "positive" role in the region, from Burma to Sri Lanka, reiterating "that with power comes responsibility. Obama said there was a new hope for democracy in Sri Lanka. Those who installed the Sirisena-Wickremesinghe administration wouldn’t have believed it would become so unpopular due to treasury bond scams perpetrated in 2015 and 2016, economic mismanagement that caused turmoil in every sector, and a new political party, led by ousted Rajapaksa, sweeping the Local Government polls in Feb. 2018.

Menon on Chinese funding

Former President Rajapaksa, in his lengthy response to the NYT article, referred to former Indian National Security Advisor Shivshankar Menon’s (January 2010-May 2014), memoirs, titled ‘Choices: Inside the Making of India’s Foreign Policy.’ Selected section of the chapter on Sri Lanka was used to challenge the NYT article. However, vital parts that dealt with New Delhi’s concerns as regards Chinese presence here and Chinese financial backing for the previous administration were ignored.

Former Indian National Security Advisor Shivshankar Menon (January 2010-May 2014), in his memoirs, titled ‘Choices: Inside the Making of India’s Foreign Policy,’ alleged that the Rajapaksas in May 2014, had violated repeated assurances given in respect that there wouldn’t be a permanent Chinese military presence in Sri Lanka and the country would look to India for most of its military training and intelligence needs. "At no stage was exclusivity sought or promised. And, realistically speaking, it would be unreasonable to expect exclusivity," Menon, who had been India’s High Commissioner, in Colombo, years ago (1997-2000), said.

Having commented on the conduct of former President Rajapaksa and Defence Secretary Gotabhaya Rajapaksa, Menon accused Sri Lanka of reneging on bilateral understanding with India. Menon directly alleged that the former President received Chinese funds for his political campaigns, and projects. Menon didn’t indicate when the war-winning President first received Chinese funding.

It would better to peruse the relevant section verbatim from the Chapter on Sri Lanka, titled ‘Force works’: "I found that as Defence Secretary, Gotabhaya, had a clear view of Sri Lanka’s interests, one that was compatible with ours. Immediately after the war, he reassured the Indian troika (National Security Advisor M.K. Narayan, Defence Secretary Vijay Singh, and Foreign Secretary Shivshankar Menon) about the nature of Sri Lanka’s defence relationship with China, and helped Indian companies re-enter the reconstruction of Colombo. Security was Gotabhaya’s sole preoccupation, which made him sensitive to India’s concerns, while his brother Mahinda was much more compliant with Chinese demands, having built a political machine on Chinese money. The basic assurances that Gotabhaya and, more reluctantly, Mahinda Rajapaksa gave us were that India’s security interests would be respected and that there would be no surprises in Sri Lanka’s relations with China. In detailed conversations I was assured that there wouldn’t be a permanent Chinese military presence in Sri Lanka and that Sri Lanka would look to India for most of its military training and intelligence needs. These assurances were respected, in practice, by the Sri Lankans, until May 2014. At no stage exclusivity sought or promised. And realistically speaking, it would be unreasonable to expect exclusivity."

Parliamentary Act needed

Sri Lanka should examine funding received by political parties and lawmakers, both from foreign and local sources. Non-Governmental Organizations (NGOs), too, should be scrutinized. Under the Right to Information Act, the public have a right to seek information regarding funds received by NGOs. During the war, major NGOs received staggering amounts of foreign funding with Norway being one of the major contributors. NGOs utilized foreign funds to influence the decision making process as well as the electorate. A Norwegian study, released in late 2011, dealt with Sri Lankan recipients of Oslo funds with the focus on the period Norway facilitated peace talks with the LTTE. The Norwegian funding was meant to support a negotiated settlement with the LTTE even at the expense of Sri Lanka’s unitary status and division of the country on ethnic lines. The recipients of foreign funds have no option but to pursue the policies of the donors or face the consequences. Norway dealt a deadly blow to NGO guru Dr. Kumar Rupesinghe during the previous administration soon after he switched his allegiance to President Rajapaksa at the expense of Norwegian policy. Dr. Rupesinghe was taught a lesson for stepping out of line. Norway set an example. Recipients, whatever their status may be required to follow the policies of donors regardless of consequences. Dr. Rupesinghe’s predicament will be discussed soon.