Sri Lanka Perspectives: January 2019

 Col R Hariharan | 31-1-2019 | Courtesy: South Asia Security Trends, February 2019 | www.security-risks.com |

Politics of presidential election

Media is agog with speculative articles on the next presidential election after President Maithripala Sirisena completed four years in office on January 8, 2019. According to the Constitution, the President may at any time after the four years declare from “the commencement of his first term of office by proclamation declare his intention of appealing to the people for a mandate to hold office, by election, for a further term.” The Constitution further stipulates that the poll for the Presidential election shall be held not less than one month and not more than two months before the expiration of the term of office of the President in office.  This means the presidential election has to be held between November 8 and December 8, 2019. 

This has triggered widespread expectation that President Sirisena would call for the presidential election to restore his political credibility eroded after the failure of his misconceived “constitutional coup” to replace Prime Minister Ranil Wickremesinghe with former President Mahinda Rajapaksa. Though President Sirisena had initially declared that he was not interested in a second term, the changed political equation with the PM may force him to seek a second term to restore his reputation as the leader of the SLFP. Having burnt his bridges with PM Wickremesinghe and the United National Party (UNP) who support him to come to power, Sirisena needs the support of both the Sri Lanka Podujana Peramuna (SLPP) and Rajapaksa-loyalists within the SLFP.

This was further confirmed when SLFP secretary Dayasiri Jayasekara had announced that President Sirisena would be the SLFP candidate in the forthcoming presidential poll. The President’s close confidante and SLFP deputy leader Nirmal Siripala de Silva also has said the same. These announcements, probably made with the consent of President Sirisena, have not been well received by the SLPP. Many of the SLPP members have declared that Sirisena should not be backed by the SLPP and the presidential candidate should be from the SLPP.

Probably, President Sirisena still seems to be hopeful of winning back the  support of right wing Buddhist lobby. He is reported to be favourably considering a recommendation from the Minister for Buddha Sasana to pardon Gnanasara Thera, leader of the Bodu Bala Sena, a Buddhist fringe group, involved in hate campaign and attacks on Muslims during the Rajapaksa rule. The monk was convicted in August 2018 by the Court of Appeal on four charges of contempt of court for disturbing and threatening the state counsel in Homogama magistrate’s court subsequent to the refusal of bail to military intelligence officers suspected to be involved in a case of disappearance. The monk was sentenced to 19 years rigorous imprisonment to run concurrently and completed within 6 years. Earlier in May 2018, the monk was convicted of contempt of court and sentenced to six months rigorous imprisonment for intimidating victim-witness Mrs Sandya Ekneligoda in the case of enforced disappearance of political cartoonist Prageeth Ekneligoda.  

The controversial former defence secretary Gotabaya Rajapaksa also appears to be nursing ambitions to contest the presidential election as he is said to enjoy the support of Sinhala nationalist elements and Buddhist clergy.  However, Rajapaksas do not seem to be keen to propose him as the Pohotuwa party (as SLPP is known) candidate, presumably because Mahinda Rajapaksa does not seem to have made up his mind on his own future.  Moreover, Gotabaya is a US citizen and will not be eligible to contest the poll unless he renounces his American citizenship. He does not seem to have taken a decision on this issue so far.

Increasing external economic vulnerability

Sri Lanka has paid a high cost for the 51-day political crisis that brought the country’s economic activity to a grinding halt. The October 26, 2018 crisis not only exposed Sri Lanka’s limitations in servicing its huge foreign debt burden but underlined the country’s strategic dependence upon India and China, which chipped in with money to ward off Central Bank’s imminent financial crisis.  This is likely to aggravate Sri Lanka’s problems in delicately balancing its relations with the two Asian giants.

Sri Lanka Central Bank Governor Indrajit Coomaraswamy addressing the 33rd annual sessions of the Sri Lanka Economic Association, explained the measures he had taken to overcome the  “political tsunami” as he called the economic crisis. He said the country’s good international and regional relations, especially with India and China, enabled the country to escape serious debt crisis it face in the wake of the political crisis. Sri Lanka will have to pay $ 5.9 billion in foreign debt repayments in 2019 and the first instalment was $1.6 billion. Sri Lanka had repaid $1 billion by drawing on its foreign reserves; this has brought it to a “critically low level.”

He said the International Monetary Fund (IMF) had halted the release of the final tranche of the Extended Credit Facility when the political crisis occurred. However, the IMF was now supportive of the government’s stabilization measures and he expected the IMF to release the fund in mid-February when the fiscal data for 2018 would be available.

The Governor stressed the importance of the assistance of India and China in supporting the reserves. “Sri Lanka’s friends, the two regional giants, have stepped in to support us when we were pushed into a rather difficult corner.” Their combined assistance should replenish the reserves in the next few months.  The Reserve Bank of India (RBI) agreed to provide a $400 million currency swap facility to the Central Bank. He said “The RBI’s very rapid and timely assistance will serve to boost investor confidence by supporting Sri Lanka to maintain an adequate level of external reserves.” The RBI was likely to provide a line of credit of US$ 1 billion early.

The Bank of China (BOC) has offered $300 million loan tied over the immediate need. Dr Coomaraswamy said both the RBI and the BOC were considering plans to scale up their offers to $1 billion each. He stated that the Chinese loan was likely to come at an interest of about 5.5 percent.  In addition to this, the Central was also trying to scale up a $1 billion loan received from China Development Bank in 2018 by a further sum of $500 million, which was expected to be available in February.

He further explained other measures taken to be prepared for “the worst and we learnt a lesson on October 26, 2018. We don’t know what political tsunami might come next. So we have to plan and get the money as fast as possible.” The proposed measures included issue of an International Sovereign Bond (ISB) to borrow up to $2 billion; the Bank of Ceylon and the Peoples Bank raising lines of credit on behalf of the government. However, these would further raise the debt burden of the country.

Col R Hariharan, a retired MI officer, served as the head of Intelligence of the Indian Peace Keeping Force in Sri Lanka from 1987 to 90. He is associated with the Chennai Centre for China Studies, South Asia Analysis Group and the International Law and Strategic Analysis Institute, Chennai. E-mail: haridirect@gmail.com  Blog: http://col.hariharan.info

Perspectives on political crises in Sri Lanka and Maldives

Colonel R Hariharan | World Focus | January 2019 issue | www.worldfocus.in

Introduction

Recently India’s Indian Ocean neighbours – Sri Lanka and Maldives – witnessed political crises after heads of state attempted to tinker with constitution to suit their political ends, plunging the country into chaos and uncertain future. This was due to fractious and personality driven domestic politics practiced in both the countries. However, they have managed to defuse the crises through democratic process, thanks to their own internal political dynamics and external pressure, mainly from the US and the European Union.

Both the island nations are important partners in India’s national and Indian Ocean security template.  So it becomes imperative for India to understand the external influences, notably China, which played a part in the crises situation.

Sri Lanka political crisis and its aftermath

President Maithripala Sirisena in a dramatic move on October 26, 2018 installed former president Mahinda Rajapaksa as Prime Minister, and sacked his coalition partner PM Ranil Wickremesinghe, leader of the United National Party (UNP), although it was the support of Wickremesinghe and the UNP that enabled him to, defeat Rajapaksa in the presidential election. The Sirisena-Wickremesinghe coalition had created the signature brand ‘Yahapalana’ (good governance) for their government to restore good governance and bring the perpetrators of corrupt acts during the Rajapaksa regime to book. So the President’s action was condemned as a betrayal of the people, who voted him to power.

The President prorogued the parliament till November 16, preventing Wickremesinghe from seeking a vote of confidence in parliament. After the President’s Sri Lanka Freedom Party (SLFP)-led United Peoples Front Alliance (UPFA) and the pro-Rajapaksa Joint Opposition (JO) group withdrew support to the Wickremesinghe government, he ordered the dissolution of parliament and holding of fresh elections in January 2019.

However, Rajapaksa government could not legitimize itself after a defiant Karu Jayasuriya, the speaker of parliament declared the President’s action unconstitutional; he went ahead and convened the parliament to pass a vote of confidence in Wickremesinghe government twice. 

The political developments in Sri Lanka stunned the US and the EU as they had supported the forming of Sirisena and Wickremesinghe coalition to keep Rajapaksa out of power. During his rule as President, Rajapaksa had defied their demand for investigating alleged war crimes during the Eelam War and other aberrations of governance and human rights violations. The Western powers and India were uncomfortable with Rajapaksa developing cosy relations with China. He had facilitated huge Chinese investments in infrastructure projects like the Hambantota port complex strengthening China’s presence in the IOR.

The US came out publicly in support of the speaker’s request to the President to constitutionally resolve the issue. After PM Rajapaksa could not muster majority support in parliament, he resigned when the supreme court held the president’s actions unconstitutional. President Sirisena had no option but to reinstate Wickremesinghe as PM on December 16, 2018 ending political uncertainty that lasted 51 days.

Though the crisis has been defused, there is uncertainty about the future as President Sirisena has openly expressed his aversion to work with PM Wickremesinghe after the latter assumed office.

India, which always haunts Sri Lanka politics with its “Big Brother” image, maintained a surprisingly low profile. There was probably an attempt by unknown anti-Indian elements when a news report hinting at the Indian intelligence agency RAW’s hand in a suspected plot to assassinate President Sirisena and former defence secretary Gotabaya Rajapaksa, surfaced. This had probably further aggravated Preident Sirisena’s suspicion about a conspiracy hatched by the UNP to rid of him. 

According to a media report, President Sirisena had talked about the plot at a cabinet meeting. Later he spoke to Prime Minister Narendra Modi to clarify that he never alleged India was behind the assassination plot. India did not allow such provocations to affect its decision to keep out of any political controversy during the crisis period.

On the other hand, China was happy to see Rajapaksa, its favourite Sri Lankan leader, staging a comeback to power. China’s ambassador in Colombo Chen Xueyuan was one of the first diplomats to meet Rajapaksa soon after he was sworn in as PM. He presented a congratulatory message from PM Li Keqiang.  After social media took China to task for supporting Rajapaksa, China clarified that it did not intend to interfere in Sri Lanka’s internal affairs. Chinese foreign ministry spokesman said that China was closely following the changes in the situation in Sri Lanka. “We have maintained communication with the relevant political parties in Sri Lanka. The Chinese ambassador met Wickremesinghe and the new PM Rajapaksa” he added.

Maldives political crisis        

The recent political crisis in Maldives, Asia’s smallest country of 26 atolls located in the Indian Ocean, ended with the election of President Ibrahim Mohammed Solih. He defeated the outgoing President Abdulla Yameen who had become increasingly autocratic. The presence of Prime Minister Narendra Modi at the swearing in ceremony of President Solih indicated the importance India attached to his election. This was followed by President Solih’s maiden state visit to New Delhi during which he was warmly welcomed. At a joint press conference, PM Modi announced a grant of $1.4 billion in budget support, currency swap agreements, and concessional lines of credit to Maldives to tide over its financial crunch.  

The political crisis has to be understood in the background of Maldives’ history of periodic political turbulence and faction fights in its inbred society ever since it became a republic in November 11, 1968. President Maumoon Abdul Gayoom who ruled for three decades after he was elected for the first time in 1978, brought some stability and boosted international tourism, which is the country’s main source of income. However, his autocratic methods and suppression of dissent made his six terms of presidency controversial.

Gayoom managed to survive three coup attempts in 1980, 1983 and 1988. The 1988 coup attempt, organized by a Maldivian businessman, using mercenaries of former Sri Lankan Tamil insurgency organization PLOTE was crushed with the help of Indian army parachute battalion flown in to round up the plotters, who had occupied Hulule airport. However, during his last term Gayoom’s ruling Maldivian Peoples Party (MPP) was increasingly facing popular demand for political reforms.

Due to increasing pressure from Mohammed Nasheed, a journalist, who founded the Maldivian Democratic Party (MDP) in 2003, President Gayoom allowed gradual reforms. A new constitution was approved in 2008 and Nasheed was elected president under the new constitution. 

However, Nasheed faced huge debt left by previous government, economic downturn dude to after-effects of 2004 tsunami leading to unemployment, corruption and drug menace. In spite of this, social welfare benefits were introduced for the aged and single parents. In 2011, President Nasheed faced increasing social and political unrest and demands for Islamic rule. He resigned after army and police elements mutinied in February 2012. Vice President Mohammed Waheed was sworn in as president. Nasheed was arrested and tried, under questionable circumstances, for terrorism and sentenced to 13 years in jail.

In the elections held in 2013, Nasheed was elected in the first count; however, supreme court annulled the election. In the re-run of the election Abdulla Yameen, half brother of former president Gayoom, was elected president. 

However, President Yameen surprised India, which has been a traditional ally and security guarantor, by adopting an increasingly pro-China stand. Chinese investments which had been surging since 2012 made a huge leap during Yameen’s reign.  President Xi Jinping made a historic visit to Maldives in September 2014, bringing China’s ties closer with the Maldives. President Yameen made a three-day visit to Beijing and signed 12 agreements including a Free Trade Agreement (FTA) and a tariff free import-export trade deal with China. China is supporting multiple housing projects, a power plant, a bridge costing $200 million connecting Male to the Hulule airport and a water and sewage treatment plant. The three projects alone are worth $1.5 billion, more than 40 percent of Maldives GDP.

These developments caught India off-guard. India was concerned when China was said to be looking to establish a joint ocean observation station at the westernmost atoll of Makhnudhoo not far from India. It will provide a vantage point to China overlooking the important sea route through which ships pass. Former president Nasheed has said China had already acquired 17 islands in Maldives and there was no clarity about China’s activities in these islands.

In the words of the Beijing tabloid Global Times, President Abdulla Yameen’s government had watered down the country’s traditional ‘India first’ foreign policy to successful court investment and assistance from New Delhi’s geopolitical rivals – China, Pakistan – and Saudi Arabia. It has also jailed several pro-India opposition figures, including former presidents Mohamed Nasheed and Maumoon Abdul Gayoom.

As political opposition against President Yameen gathered momentum, the supreme court ordered the release of nine political prisoners and reinstating 12 parliament members, which  increased the potential to impeach Yameen. On February 5, 2018 President Yameen declared a state of emergency and ordered the arrest of two judges of the supreme court including the chief justice.  Mass arrests followed and many constitutional rights were suspended. Crackdown on the media and anti-government rallies was carried out across the country. India criticized the state of emergency, called upon Maldives to observe the supreme court ruling to release the political prisoners. China warned India not to interfere in the internal affairs of Maldives.

The rest is history with the election of President Solih. In a surprise U-turn, after the defeat of Yameen, China changed its tune on India’s role in Maldives. The Global Times said Beijing had come up with a constructive “two-plus-one” mechanism – China and India plus another South Asian country as a demonstration of sincerity. “The mechanism cannot not only enhance mutual trust between China and India but prevent other South Asian countries from being caught in between” the editorial said.

Way forward

It is not enough to study the recent crises in Sri Lanka and Maldives through the traditional template of India- China rivalry. India-China relations are undergoing possibly a reset after PM Modi and President Xi Jinping had an informal summit at Wuhan in July 2018 in a bid to mend the relations between the two countries frayed after the 2017 military standoff between their armies at Doklam.

A series of follow-up decisions are being taken by the two countries thereafter to maintain and develop cordial relations. However, China’s conduct in  Sri Lanka and Maldives, two important partners in the BRI would  probably indicate how the India-China relations would shape up in the near future and impact the security environment not only in the two island nations but IOR as well. [Written on December 19, 2018]

[Col R Hariharan, a retired MI specialist on South Asia, is associated with the Chennai Centre for China Studies. He served as head of intelligence of  the Indian Peace Keeping Force in Sri Lanka from 1987 to 90.  His writes analytical articles in the areas of specialization including South Asian countries, terrorism and insurgency and China’s relations with South Asian countries and littorals of the Indian Ocean Region. E-mail: haridirect@gmail.com; blog http://col.hariharan.info ] 

Sri Lanka Perspectives 2018: A year of discreditable performance

Col R Hariharan | 31-12-2018 | Courtesy: South Asia Security Trends, January 2019 | www.security-risks.com |

Undoubtedly, 2018 will go down as a discreditable year for Sri Lankan politics, if we go by the 51-day political impasse created by President Maithripala Sirisena’s ill-conceived actions to dismiss Prime Minister Ranil Wickremesinghe and install former president Mahinda Rajapaksa as PM. The Rajapaksa government flaunting all the perks ruling the country for 51 days, without a parliamentary mandate was the height of political ignominy. 

However, refusal of the parliament to endorse Rajapaksa as PM and the Supreme Court striking down all actions of the President that created the political crisis as unconstitutional, showed there is hope for democracy to survive in the coming year.

Though Sri Lankans don’t eat ‘the humble pie’ as they prefer hoppers, President Sirisena had to do just on December 15, 2018 when he swore-in Wickremesinghe once again as PM, after declaring, not once but twice a month ago that he, “will not make him prime minister ... not in my lifetime."  Also forgotten were his comments at his party meeting: "He [Wickremesinghe] is corrupt. His economic policies are not good for local industries. He pursued an extremely liberal form of government that is not compatible with our culture." 

Perhaps the President forgot that people voted him to power because they wanted a liberal government after President Rajapaksa’s authoritarian rule.

The President also directly attacked PM Wickremesinghe for appointing Arjuna Mahendran as the Central Bank Governor and the Bond scam, which was against the very principles on which the UNF government was elected in 2015. He said “Today the main suspect (Mahendran) is absconding and the Yahaplanaya Government and the UNP partners have been slow to act, thereby protecting the corrupt. They stifled investigation or subjected those investigating to threats.”

Evidently, this Bond issue will be milked to the full in the Sirisena-Wickremesinghe tug of war in the run up to the next general elections; but the moot point is will the politicians involved in the scam be prosecuted and punished? Successive governments in Sri Lanka have never covered themselves with glory in this regard. A recent example is the slow progress in a large number of criminal cases filed against the Rajapaksa family members. Despite all the political rhetoric and publicity, it is still work in progress.

Going by all indications the political situation is unlikely to improve even after Wickremesinghe’s return as PM. PM Wickremesinghe was clearly outwitted when Sirisena and Rajapa hatched the plan to dethrone him from power. Earlier, in his political career, Wickremesinghe has demonstrated his inability to astutely read political developments in real time. Can he overcome this leadership weakness?

Even in the recent political crisis it is the overwhelming public and civil society’s protest against President Sirisena’s cavalier action in sacking Wickremesinghe that strengthened his hand. This showed there is a strong, vocal public constituency that still believes in Yahapalana ideology. The media had also picked up the public mood and made common cause with them against the President’s actions.

PM Wickremesinghe’s success in 2019 would very much depend upon his ability to retain the support of this constituency. So the key question is can he meet their expectations, that is fulfilling the incomplete agenda of the Sirisena-Wickremesinghe combine. A few incomplete parts of the agenda have defied easy solution; these include drafting a new constitution which could satisfy the aspirations of Tamil minority while maintaining the unity of Sri Lanka.

The US, European Union and Japan had rallied to the support of Wickremesinghe during the political crisis in the hope that he would meet their expectations on implementing the UN Human Rights Council resolution on a host of issues of accountability for human rights aberrations including alleged war crimes and forced disappearances of civilians. 

These politically loaded issues require commitment and the ability to carry the government and the coalition to resolve them. Does the PM have the commitment to do so? If PM Wickremesinghe wants to make a difference, he has to find answers to these troubling questions. 

Rajapaksa may be down but not out. Despite the recent setback in his political bid to become PM, Rajapaksa’s loyal support base among Southern Sinhala rural constituency is intact. A strong-willed leader Rajapaksa will do his best to bounce back to power. The Sri Lanka Freedom Party (SLFP) has decided to form a broad political alliance with the SLPP and other partners of the UPFA coalition including the Mahajana Eksath Peramuna, Communist Party, Lanka Sama Samaj, Nation Freedom Front etc. The weakness of this combine is the lack of adequate support from minority parties.

And the recent political impasse had exposed Rajappaksa’s limitations in attracting the support of minority Tamils and Muslim parties. When Rajapaksa was in power, he had indulged in political double speak in handling Sinhala Buddhist fringe elements which whipped up violent anti-Muslim activities. These Buddhist fringe groups might be encouraged to stage a comeback in the coming months, taking advantage of the political turbulence.

Though political headwind is blowing in PM Wickremesinghe’s favour, reviving his presidential ambitions, there are too many uncertainties that could dissipate the advantage as the presidential election is due only in November 2019.

Overall, the year has ended with disillusionment for the people, who voted Sirisena-Wickremesinghe combine to usher in good governance. After three and a half years their dream is shattered as good governance seem to be illusive because politicians do not seem to have changed their change their style. In this pessimistic environment, one can only hope the year 2019 will be a better one.

Col R Hariharan, a retired MI officer, served as the head of Intelligence of the Indian Peace Keeping Force in Sri Lanka from 1987 to 90. He is associated with the Chennai Centre for China Studies, South Asia Analysis Group and the International Law and Strategic Analysis Institute, Chennai. E-mail: haridirect@gmail.com  Blog: http://col.hariharan.info

Col Hariharan's Flag Day interview in Tamil in DD Podhigai TV

Mass Killings: How About a Law for Genocide?

 Sajjan Kumar’s conviction shows the need for this law in India which has often been rocked by pogroms. But is there political will to do so when it could lead to prosecution of public servants?

                                                                                                                 

~By Colonel R Hariharan | India Legal | December 22, 2018|  http://www.indialegallive.com/viewpoint/mass-killings-how-about-a-law-for-genocide-58702

The sentencing of Congress leader Sajjan Kumar to life imprisonment for his role in the 1984 anti-Sikh riots, where more than 2,700 were killed in the capital, is not the first case of mass killing. Nor is it the first time when the long arm of the law was not strong enough to deliver justice as the accused had the right political connections.

This is an apt case study for a host of things that are wrong with our law en­for­cement, judicial system, criminal prosecution, et al. When it comes to handling real life cases, particularly mass killings like the 1984 anti-Sikh massacre, politics seems to take precedence over all other considerations.

In this context, the observations of the Delhi High Court bench of Justices S Muralidhar and Vinod Goel while convicting Sajjan Kumar are relevant. They said “cases like these are to be viewed in the larger context of mass crimes that require a different approach”. Noting that in Delhi alone, 2,733 Sikhs were killed and nearly 3,350 Sikhs done to death all over the country,

the judges said this was “neither the first instance of mass crime, nor tragically, the last”.

They indicated a familiar pattern of killings in Mumbai in 1993, Gujarat in 2002, Kandhamal, Odisha, in 2008 and Muzaffarnagar in UP in 2003. The common link in such crimes was targeting of minorities and “attacks spearheaded by dominant political actors being facilitated by law enforcement agencies”.

While they were stating the obvious, this is not the first time judges have made such a statement. On August 21, 2009, additional sessions judge Surinder S Rathi in Delhi had found three persons guilty of rioting, attempt to murder and arson. He had observed: “Though we boast being the world’s largest democracy and Delhi the national capital, the sheer mention of the incidents of 1984 anti-Sikh riots in general and the role played by Delhi Police and state machinery in particular makes our heads hang in shame in the eyes of the world polity.”

In a way, the 1984 riots were a watershed in Indian politics. Delhi-based lawyer HS Phoolka, who represented the 1984 victims, had said it showed the creeping criminalisation of Indian politics. “Before the 1984 riots, there were no criminals in politics. Criminals followed politicians. But 1984 made them realise people leading mobs and killing others could get elected and become leaders. So a way was opened for criminals to make politics a profession,” he said.

This probably sums up the problem in handling mass killings—political actors and subservient law enforcement agencies conniving to protect criminal elements. Politics rides on the back of governance like King Vikram’s Vetala, a spirit that would not get off, until the King solved the riddle. Unfortunately, governance is not the king in our case, so it is the politician, the Vetala, who solves the riddle to suit his end.

The judges also called for changes in criminal law to include specific offences for “crimes against humanity” and “genocide”. Such a loophole allowed the accused responsible for mass crimes to evade prosecution and punishment. The bottomline is that India has not defined genocide by law, though the UN convention on genocide ratified it in 1959. “Genocide” does not find a place in the Indian Penal Code.

The UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948, as Resolution 260. It came into force on January 12, 1951. And on December 2017, 149 states ratified or acceded to the treaty. India had participated in the 1948 genocide convention and contributed to its drafting. India ratified it on August 27, 1959.

Actually, by ratifying the convention, India has recognised genocide as an international crime, which it has undertaken to prevent and punish as per Article I of the Convention. It has also undertaken to enact the necessary legislation “to give effect to the provisions” of the Convention, to provide effective penalties for persons guilty of genocide or any other acts related to genocide through a competent tribunal.

The Convention in Article II defines genocide as “any of the following acts with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group: (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or part; (d) Imposing measures intended to prevent births within the group; (and) (e) Forcibly transferring children of the group”.

Article III renders punishable not only acts of genocide but other acts related to it like conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide.

Though the Narendra Modi government showed alacrity in reopening the 1984 anti-Sikh riots case of Sajjan Kumar, it still does not seem to be in a hurry to recognise the need for enacting laws in conformity with the UN convention on genocide. In fact, in the Rajya Sabha on March 2, 2016, a question was raised about the government’s plans in enacting laws in conformity with the UN convention on genocide and racial discrimination and, if not, reasons for not enacting them. Answering the questions, Kiren Rijiju, minister of state for home, said:

“By acceding to the Convention on the Prevention and Punishment of the Crime of Genocide in 1959, India has recognised genocide as an international crime. The principles embodied in the Co-Convention are part of general international law and therefore already part of common law of India. The provisions of the Indian Penal Code including the procedural law (Criminal Procedure Code) provide effective penalties for persons guilty of the crime of genocide and take cognisance of the acts which may be otherwise taken to be in the nature of genocide.”

The catch in the minister’s contention that the provisions of the IPC, including the procedural criminal law, “provide effective penalties for persons guilty of crime of genocide” is flawed because genocide is not defined in the IPC. This probably shows the government’s reluctance to enact separate laws to handle genocide and crimes related to it because Article IV of the UN Convention says “persons committing genocide or any other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”. In other words, a separate law for genocide would mean sacrificing the protection given to public servants from prosecution under Section 197 of the Code of Criminal Procedure, 1973, which had been used to prevent and delay prosecution of guilty public servants.

But Article 51(c) of the Constitution enjoins the State to “foster respect for international law and treaty obligations”. Article 253 mandates the Parliament “to make any law for implementing any treaty, agreement or convention”. So both the government and Parliament have an obligation to enact separate laws for genocide and related acts as required by the UN Convention.

HL Mencken, editor of The Baltimore Sun, described democracy as the art and science of running a circus from the monkey cage. As the world’s largest democracy, we seem to be a living example of it.

Bangladesh was able to overcome both domestic and international roadblocks to prosecute those involved in the mother of all genocides in the run-up to its independence? Why can’t we?

—The writer is a military intelligence specialist on South Asia, associated with the Chennai Centre for China Studies and the International Law and Strategic Analysis Institute

Sri Lanka Perspectives: November 2018

Col R Hariharan | 30-11-2018 |Courtesy: South Asia Security Trends, December 2018 | www.security-risks.com |

Breaking the political impasse

President Maithripala Sirisena is trying hard to work out a face saving compromise to break the political deadlock created by him after installed former president Mahinda Rajapaksa as Prime Minister, sacking PM Ranil Wickremesinghe, three weeks ago. Though PM Rajapaksa and his cabinet have taken over the government, the parliament has refused to accept his appointment. The country is in a drift as day to day functioning of the government is hamstrung by the crisis.

Former PM Wickremesinghe refusing to vacate the PM’s official residence Temple Trees, and his party said to be meeting the expenditure for his continued stay there, typically illustrates the confusing ground situation.  

A defiant speaker Karu Jayasuriya, rejected President’s order to prorogue the parliament and later dissolve it. He has ensured two no confidence motions are passed against the Rajapaksa government. The parliament boycotted by Rajapaksa’s UPFA-SLPP coalition, has passed yet another resolution to block any expenditure by PM’s office.

A plethora of cases against President Sirisena’s actions dubbed as unconstitutional by Wickremesinghe and his erstwhile coalition partners is pending in the supreme court. These cases are likely to be disposed of on December 7, 2018.  Added to this, Wickremesinghe’s quo warranto petition  filed to prevent PM Rajapaksa from functioning filed in the Court of Appeal is coming up for hearing on December 3, 2018. 

With pressure building up on two fronts - in parliament and the impending verdict in the cases in Supreme Court - President Sirisena has probably realized the only way to defuse the situation is to work out a deal with the opposition leaders. The Speaker agreed to arrange a one-on-one meeting between the President with the leaders of the United National Front (UNF) constituent parties led by Wickremesinghe and with the four-party Tamil National Alliance (TNA) members led by the leader of the opposition P Sampanthan to explore a possible way out of the crisis.

The meetings took place on November 30, 2018 as scheduled. But it was probably inconclusive. According to TNA sources, the President is said to have advised them to pass another no confidence motion against Rajapaksa government in the parliament in accordance with the standing orders when it meets on December 5, 2018.  This could pave the way for swearing in another UNP nominee as PM. President Sirisena has repeatedly vowed not to accept Wickremesinghe again as PM again; so far the UNP has not chosen another leader from the party to be the PM. The President will probably withdraw the notification dissolving the parliament as the price for striking a deal with the opposition. Seeking UNF cooperation for holding a fresh parliamentary election could also be another trade off for President Sirisena.

PM Rajapaksa in his first televised address after taking over as PM said the country’s stability could be restored through a fresh round of parliamentary election. He added that the UNP, unlike other parties, was not ready to face the people. The PM said President Sirisena had entrusted him to resurrect the falling economy and living standard of the people. Referring to his government, he said “what we have now is only an interim government. When a downward trend manifests itself, it is difficult to turn things around in a month or two.”  He alleged that the Wickremesinghe government had borrowed $20.7 bn in three years and it would take a while to turn things around.

However, in May 2018, when a no confidence motion against PM Wickremesinghe was defeated, the PM described the motion as an attempt not to just oust him, but the first step to topple the National Unity government led by President Sirisena. He had asked the party should prepare for the coming provincial, presidential and parliamentary elections. Is the UNP ready now for a parliamentary election?

Arrest of the CDS and attempted transfer of CID Inspector

President Sirisena speaking to foreign correspondents has assured non interference in ongoing investigations into abductions, killing of journalists, and other crimes allegedly committed by those connected to the new government. He said ‘no one can interfere’ with police and courts. Apparently, the President’s assurance was a damage control measure after political parties raised a furore when Inspector Nishantha Adrian Silva of the CID branch, investigating a number of highly sensitive cases, was suddenly transferred by the Inspector General of police. It was allegedly done due to pressure from the President’s office.

The cases he was handling included the assaulting of journalist Keith Neyhr by suspected military intelligence personnel and the case of Lt Comdr Hettiarachchi involved in the kidnapping and disappearance of 11 Tamil youth in 2008-2009.

However, the police commission intervened to cancel the transfer of Inspector Nishantha, indicating at least the Yahapalana government has indeed made a difference in making the commissions function independently.

Curiously, while the whole drama of the CID inspector’s transfer was being enacted, Sri Lanka’s highest ranking serving military officer Chief of Defence Staff Admiral Ravindra Wijegunaratne, appeared before Colombo Fort Magistrate and was remanded to custody till December 5, 2018.

It is interesting to note that earlier the CDS failed to appear before  the CID and give a statement on his alleged help to Lt Comdr Hettiararchchi to evade arrest in the case of kidnapping 11 youth. 

The arrest and prosecution of the CDS could set a precedent for the arrest of other service officers allegedly involved in war crimes. President Sirisena has repeatedly said he would never to prosecute armed forces personnel on alleged war crimes. So, how he reacts to the arrest of the CDS is likely to determine whether other cases involving two naval officers would be allowed to take its logical course.

Tail piece: Even the constitutional crisis and its questionable status did not deter the government from signing two contracts totaling more than $50 million with two Chinese firms. The contract worth $32 million with China Harbour Engineering Company (CHEC) was to enhance the deep berth capacity of the state-run Jaya Container Terminal in Colombo. The other contract worth $25.7 million was for the supply of three cranes from Shanghai Zhenhua Heavy Industries for the same project. India had expressed its concern at the deal earlier as  80 per cent of its marine trade passes through the port.

Col R Hariharan, a retired MI officer, served as the head of Intelligence of the Indian Peace Keeping Force in Sri Lanka from 1987 to 90. He is associated with the Chennai Centre for China Studies, South Asia Analysis Group and the International Law and Strategic Analysis Institute, Chennai. E-mail: haridirect@gmail.com  Blog: http://col.hariharan.info