Advocacy of GSP+ withdrawal will adversely impact vulnerable segments of population

By Dharshan Weerasekera,
Attorney-at-Law, Head of Department of the Legal Unit of
the Eastern Province Provincial Council

I am a citizen of Sri Lanka and a lawyer working in the Eastern Province and would like an opportunity to respond to the statement by Ms. Ambika Satkunanathan made before the Subcommittee on Human Rights. In my opinion, the statement is replete with factual errors, insinuations, innuendos, etc. If these are not promptly addressed, they could create misperceptions about Sri Lanka among members of the international community, especially the EU, with grave consequences to this country.

Ms. Satkunanathan makes three recommendations: a) the EU should use the GSP+ facility as a tool to compel the Government of Sri Lanka to address its purported human rights abuses, b) the EU should support the evidence-gathering mechanism established under UNHRC resolution 46/1, and c) support efforts to use universal jurisdiction to hold persons accountable for purported human rights violations. In this reply, I will focus on the first issue.

In my view, Ms. Satkunanathan’s recommendation for a possible withdrawal of GSP+ is unreasonable because of the following reasons. First, the fields that would be most affected by such a withdrawal would be, a) the garment industry, b) fisheries and c) agriculture. Inevitably the persons who would suffer the most would be from the most vulnerable segments of the population. In the case of the garment sector, women, who primarily work in the garment sector will be affected. In the case of fishing, mostly low-income persons especially from the Tamil community, will be affected and finally in the agricultural sector, small to medium scale farmers will be the hardest hit.

If the expected result of a withdrawal of the GSP+ facility is an improvement in the human rights situation in Sri Lanka, the question arises, “what about the right to life, work of choice, family, etc.—all rights guaranteed under the Universal Declaration of Human Rights—of the aforesaid persons and their family members?”

Second, because of the Covid-19 global pandemic, Sri Lanka’s economy has been devastated. Moreover, the Government of Sri Lanka has had to spend enormous amounts of money to import vaccines, run treatment centres, etc. In these circumstances, to deprive this country of GSP+ which is one of the few remaining ways in which the country can earn foreign exchange, would be akin to kicking a fallen person when they are down. It would also arguably be contrary to EU law and more importantly, the principles of the Universal Declaration of Human Rights, Article 30 which states:

“Nothing in this Declaration may be interpreted as implying for any State, group of person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” (Article 30, Universal Declaration of Human Rights)

I next turn to Ms. Satkunanathan’s specific allegations. To the best of my knowledge, they fall into five categories: i) purported entrenching of impunity, ii) the majoritarian nature of the Sri Lankan state and its consequences, iii) shrinking of civic space, iv) extrajudicial killings and arrests under the pretext of the “war on drug” and v) exploiting inter-state rivalry to undermine the efforts of states that call for accountability. I will address each of them in turn.

i) Purported entrenching of impunity

Ms. Satkunanathan’s argument is that the failure of the Government of Sri Lanka to deal with accountability for purported war time abuses has entrenched a culture of impunity. The flaw in this argument is that, there are serious questions over the veracity of the evidence in the UNHRC-related reports (the only ones of any relevance for the international community) that level these allegations.

For instance, in regard to purported violations of humanitarian law, two reports are relevant—the Secretary-General’s Panel of Experts on Accountability in Sri Lanka (2011) and the Office of the High Commissioner for Human Rights Investigation on Sri Lanka (2015). Both reports allege that “system crimes” were committed during the relevant period. However, there are two domestic reports—the Lessons Learnt and reconciliation Commission (2011) and the Paranagama Commission (2015)—that state categorically that no systemic crimes occurred.

Sri Lanka’s position has been that the UNHRC-related reports are levelling unsubstantiated allegations. Given the principle of international law that domestic remedies must be exhausted before turning to international ones, it necessarily follows that the international community cannot unilaterally or uncritically endorse the position of the UNHRC-reports without first showing that the conclusions of the domestic mechanisms are wrong. To my knowledge, there has been no such report. Therefore, it is unreasonable for the EU to even entertain the prospect of taking unilateral action on Sri Lanka in regard to the issue of humanitarian law violations.

Furthermore, there is at present a Presidential Commission of Inquiry mandated specifically to review the findings and recommendations of the previous Presidential Commissions particularly the LLRC and the Paranagama Commissions, and report on the progress or lack thereof in implementing the recommendations of those Commissions. The new Commission is headed by Justice Nawaz a sitting member of the Sri Lanka Supreme Court and his final report is expected in February 2022. In these circumstances, hasty conclusions by the EU Parliament about the issue of accountability would be unjustified at least until the findings of the said report are known and also discussed and debated in international forums, including the UNHRC.

On purported violations of human rights law, to the best of my knowledge the GOSL has been actively engaging the international community including the UNHRC’s Universal Period Review and Special Procedures to address the various concerns that have been raised. This includes the allegations of systematic torture. To my knowledge, there is no report or finding to date by the EU Parliament that Sri Lanka’s efforts at such engagement are inadequate. In these circumstances, to take unilateral action against Sri Lanka based on the statements of private persons or groups with their own agendas in respect of Sri Lanka is unreasonable.

ii) Purported majoritarian nature of the state,

Ms. Satkunanathan’ s argument is that, given the “majoritarian nature” of the Sri Lankan state, the minorities are marginalised and cannot get justice. She also raises two points under this, namely, that the present government is driven by an ideology based on the two pillars of Sinhala-Buddhist nationalism and militarisation. As evidence of the dominance of Sinhala-Buddhist nationalism, she points to the Presidential Task Force on Archaeology which she accuses of being a tool for land-grabbing and changing the demographics of minority-heavy areas, and the Presidential Task Force on “One-Country One Law” which she accuses of stoking ethnic hatred and violence.

The flaw in Ms. Satkunanathan’s reasoning is that: firstly, in all democracies the voice of the majority inevitably prevails, to wish otherwise would be to wish that Sri Lanka stop being a democracy. The more pertinent question is whether, given the realities of a democratic government, do the minorities in Sri Lanka have sufficient safeguards to ensure that their rights and interests are protected? The answer is “yes.”

For instance, there are no discernible differences among the Sinhalese, Tamils and Muslims in this country in regard to relevant factors such as life-expectancy, infant mortality, average income, graduation rates from the schools and universities and so on. If there was systematic discrimination against minorities, one would expect to see such discrepancies. Meanwhile, on representation, the Sri Lankan Parliament has minority members roughly in proportion to their numbers in the general population. Meanwhile, twice in the recent past, a Tamil political party has been the official opposition in Parliament.

Finally, in the years since independence, Sri Lanka has had innumerable Deans of Universities, Solicitors General (even Attorneys General), Supreme Court Judges (even Chief Justices), Cabinet Ministers and other high officials from among the minorities. The present Justice Minister is a Muslim while the Attorney General is of Tamil descent. If there was systematic discrimination against minorities, how could these things be possible?

Second, to turn to Ms. Satkunanathan’s claims about the Task Force on Archaeology including the claim that it is a device to facilitate land-grabbing and changing the demographics in minority-heavy areas, the following facts need to be brought to the attention of the EU Parliament. It is not in dispute that, Sri Lanka has an illustrious history going back to over 2,500 years. The archaeology including epigraphy of this period is the common heritage of all Sri Lankans. Today, this history is not just a matter of national pride but a source of national wealth because of tourism, one of the prime means of income for the country.

During the 30-year civil conflict, efforts at exploring the archaeology of the Northern and Eastern provinces were almost completely halted and there is a huge lacuna in our knowledge of the sites in these areas. Also, unfortunately, there is evidence that the LTTE and other factions deliberately destroyed some of the sites in the course of establishing training camps and other things and also as a means of obliterating signs of Sinhalese presence in the relevant areas.

Meanwhile, after the conflict as displaced persons returned to the North and East, there has been an increase in unauthorised encroachment on forest areas inevitably leading to destruction of archaeological sites. So, there is an urgent need to take concrete measures in order to protect these sites. The Antiquities Ordinance, passed during British times, gives the Government wide powers to preserve and protect the archaeological heritage of the country.

To my knowledge, it is in this context that the Presidential Task Force on Archaeology was set up. It has representation from all ethnic communities and it is reasonable to suppose that if anything illegal or untoward is proposed, these representatives will point such things out if vigilant members of the public (especially those such as Ms. Satkunanathan) fail to do so sooner.

The purpose of the Task Force is to coordinate the efforts to identify the archaeological sites in the Northern and Eastern Provinces. To think of it as a pretext for land-grabbing and introducing the Sinhalese to these areas is preposterous. For one thing, the Sinhalese people do not need a Presidential Task Force on Archaeology to validate their moving into the Northern and Eastern Provinces. Those areas are part of their country. Also, during the thirty-year civil conflict, the Sinhalese as well as Muslims in these areas were driven out as part of large-scale ethnic-cleansing campaigns by the LTTE. So, these people have a natural right of return to their former homes. However, there is absolutely no evidence of a systematic effort by the government to change the demographics of any provinces in Sri Lanka.

Finally, to turn to the Presidential task Force on “One Country One Law,” it should be noted that the Commission is expected to play an advisory role only. The Commissioner’s recommendations will be first studied by the Justice Ministry, then the Cabinet of Ministers and finally the Parliament in keeping with the democratic traditions we uphold dearly. Meanwhile, the Commission has not released any report yet and one must presume that before critics condemn a Commission, they should first wait until they know what its findings are. In any event, for the EU to take unilateral action against Sri Lanka on such grounds is unreasonable.

iii) Shrinking of democratic space

Ms. Satkunanathan’s argument is that extra-legal processes are increasingly being used to curtail the activities of civil society organizations, journalists and activists. In reply, one can point out that Sri Lanka has a system of courts with a tradition that goes backto nearly two hundred years. If the State is doing anything illegal, the aggrieved parties have many opportunities to challenge such actions in the courts. For instance, they can file actions under administrative law and also fundamental rights. Ms. Satkunanathan and others who claim that there is an increase in the State’s use of extra-legal processes have to adduce cogent evidence that the aggrieved persons have pursued administrative law actions or fundamental rights actions in regard to the matters in question and what the outcome of those cases are. To my knowledge, this has not been done yet.

On the contrary, now the Government at Presidents, Ministerial and institutal level is fully engaged with the civil society and work jointly in the development of the country and maintaining peace among communities. There are regular discussions with the Civil Society Groups and CSGs are playing a very constructive role in many different ways. It is reported that, even the NGO secretariat which was functioning under the Ministry of Defence has now moved to the Foreign Ministry to give it more liberty.

iv) “War on drugs” and its purported consequences

Ms. Satkunanathan’s argument is that there is an increase in extra-judicial killings and arrests under the pretext of a “war on drugs.” However, she fails to indicate even one instance of extra judicial killings since there is none. In regard to this, she focuses on the Prevention of Terrorism Act which she accuses of having become a tool that the Government of Sri Lanka exploits in order to intimidate and harass its critics. In regard to the PTA, it should be noted that the Government of Sri Lanka is in the process of amending the Act, which is now at the final stage and the international community is being briefed on that process. Therefore, to take unilateral action against this country at this stage based on these allegations, is certainly unreasonable.

v) Purported exploiting of inter-state rivalries

Ms. Satkunanathan’s argument is that, the Government of Sri Lanka L is exploiting its friendship with China to silence other countries that wish to pursue accountability here. This claim is refuted by the simple fact that, the so-called “Core Group on Sri Lanka” whose chief members are Germany, United Kingdom and Canada continue to aggressively pursue their agenda on Sri Lanka at the UNHRC. Last March, they managed to obtain a majority of votes to pass resolution 46/1 on Sri Lanka. Clearly, Sri Lanka’s friendship with China has failed to prevent such actions which continue unabated.

Such then are the arguments that Ms. Satkunanathan uses to support her recommendation that the EU use the GSP+ facility as a tool to pressure the Government of Sri Lanka L to mend its ways in regard to purported human rights violations. In my opinion, for the EU to even consider such a request is an affront to reason and common sense not to mention the norms and customs of international law. I would be happy to provide a more detailed response including supporting documents.