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.