A SUBMISSION TO UNHRC- OBSERVE RULES OF NATURAL JUSTICE; A SUBMISSION BY A TAMIL CITIZEN OF SRI LANKA

By Dr. Telli C Rajaratnam

UN & ITS ROLE

One of the magnificent achievements of the UN has been the transformation that has taken place in global opinion on the relationship that should obtain between the governing and the governed, between the government and the citizen. It was on the basis of the moral authority of the General Assembly’s Universal Declaration of Human Rights and the determined endeavors of the Commission on Human Rights, that this transformation was achieved. The dignity of the individual has now, largely as a result of United Nations leadership in the field of human rights, been placed, as it should be, amongst the primary priorities of national and international attention.

The Universal Declaration on Human Rights is not limited in scope to ensuring the observance of human rights by Governments alone. The LTTE violated every norm of Human Rights. The Government protected the rights of the people and it was in the process of this humanitarian operation that  accidentally there were victims.

The Declaration has a far wider purpose: the observance of human rights by all governmental and non-governmental alike.

Article 3 of the Universal Declaration, which requires that everyone has the right to life; and the provisions of article 30 of the Declaration prescribes that:“Nothing in this Declaration may be interpreted as implying for any State, group or 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”.

An act of terrorism by a non-governmental entity against civilians is surely a violation of the human rights of its victims and, surely, a crime against humanity as well.

We know the horrific  consequences of terrorism:  the horror; the thousands of unsuspecting innocent lives lost or maimed, the thousands of families then left to grieve; the countless personal tragedies that terrorism leaves. The horrors of   Terrorism has devastated the country and have cast a heavy burden on successive Governments and the Nation including all of us and on humanity as a whole. There are also the larger disruptions of national stability and order as well: of the economy and the customary ways of life

UNHRC

The Human Rights Council is an inter-governmental body within the United Nations system responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and make recommendations on them. It has the ability to discuss all thematic human rights issues and situations that require its attention throughout the year. It meets at the UN Office at Geneva.

The Council is made up of 47 United Nations Member States which are elected by the UN General Assembly. The Human Rights Council replaced the former United Nations Commission on Human Rights.The Council was created by the United Nations General Assembly on 15 March 2006 by resolution 60/251. Its first session took place from 19 to 30 June 2006. One year later, the Council adopted its “Institution-building package” to guide its work and set up its procedures and mechanisms.

Among them were the Universal Periodic Review mechanism which serves to assess the human rights situations in all United Nations Member States, the Advisory Committee which serves as the Council’s “think tank” providing it with expertise and advice on thematic human rights issues and the Complaint Procedure which allows individuals and organizations to bring human rights violations to the attention of the Council.

The Human Rights Council also works with the UN Special Procedures established by the former Commission on Human Rights and now assumed by the Council. These are made up of special rapporteurs, special representatives, independent experts and working groups that monitor, examine, advise and publicly report on thematic issues or human rights situations in specific countries.

NATURAL JUSTICE

‘Natural justice’ is a concept that was developed in England in the 19th century to define the rules for decision-making. The concept of natural justice has evolved over time and is now often described as ‘procedural fairness’ or just ‘fairness’. The U.S. concept of ‘procedural due process’ has a similar meaning. As a result, the terms natural justice, procedural fairness, and fairness are often used interchangeably.

The two basic components of natural justice are:

Component one

That the person affected by the decision:

• Will receive notice that his or her case is being considered;
• Will be provided with the specific aspects of the case that are under consideration so that an explanation or response can be prepared; and
• Will be provided with the opportunity to make submissions (written or oral) relating to the case

Component Two

That the decision-maker(s) will be unbiased.

To be unbiased is to be and to be seen as objective of impartial about the matter you are considering. The best way for decision-makers to be unbiased is:

• To understand what bias is, i.e. if you have a firmly held, favourable or negative opinion about a matter or an individual. Therefore, if you cannot be objective about a matter that is within your purview, you should remove yourself from the decision-making process.
• If you are part of a committee of decision-makers, each member must feel free to make his or her own decision. Therefore, each member of the committee must be free of influence from other committee members, from outside third parties, or from the influence of those who have designated them as decision-makers.
• Sometimes bias is alleged because it is believed the decision-maker knows too much about the matter under scrutiny. A well-informed decision-maker is not biased if she or he has an open mind and is open to persuasion by the information provided through the decision-making process.

These two components are known in its wider context as the pillars or foundations of Natural Justice, i.e., Nemo judex in sua causa (no one shall judge in his own cause) and Audi alteram Partem (Hear the other side).

To what extent the norms of Natural Justice have been observed by the UNHRC is yet to be seen.

ACCUSTIONS AGAINST GOVERNMENT DUE TO VESTED INTERESTS

All over the world the pride of the Tamils in general has been hurt by the eradication of  the LTTE whom they considered as their voice quite  to their detriment. It is now time to make them understand that this  was for their own good and that the LTTE was making use of the  innocent Tamils as human shields, as sources of income to establish  their empire. We have to make them understand that they too would have been treated the same way if ever there was an eelam. The LTTE was the private limited liability company of Velupillai Pirabaharan and his companions some of whom have branched out and started their own private companies in different names and have been lucky to register them as political parties in Sri Lanka.Most of them have been guilty of heinous crimes of terror, abductions, extortion, assassinations, murders, rape and every conceivable offence in the Penal Code, Prevention of Terrorism Act and the Emergency Regulations. How many of them escaped from Prison and are enjoying their old deeds with ease and comfort?

What has been accepted as Humanitarian Operation  by  the West has been denied for Sri Lanka.

DUTY OF THE STATE

The  President is  duty bound to protect the citizens from the Terrorists. Every citizen owes his or her allegiance to the Constitution and to the Head of State- the duly elected President of the Democratic Socialist Republic of Sri Lanka.

Due to our internal conflicts which we could have long resolved, external forces with vested interests have all sought to intervene some in the pretext of resolving the conflict but our experience has proved that the gap of resolution of conflict does not seem to be narrower now.

The people are terrorized by certain vested interests in their vile pursuits for power committing crimes and targeting a reflex scenario as if the Government was responsible..

We are a community of people, whose self interest and mutual interest at crucial points merge and that it is through a sense of justice that community is born and nurtured. This is the moment to bring the faiths closer together in understanding of our common values and heritage a source of unity and strength. By the strength of our common endeavour

we achieve more together than we can alone. We must reach beyond our fears and our divisions to a new time of great and common purpose. Let us trace the roots of affirmative action. Let us determine what it is and what it isn’t. Let us see where it has worked and where it hasn’t and ask ourselves what we need to do now.

There are individuals and groups who may be critical of the President for political gain, but the President has always taken affirmative action within the norms required of the President. We cannot restore peace unless we can find some way to bring the nation close together. We must be Patriotic. We must uphold and defend the Constitution and the Head of State-the President. We owe allegiance to the President and the Constitution as Citizens of Sri Lanka. We must uphold the norms of the Constitution apprehend and prosecute those who terrorize us by their actions and threats, then economic prosperity will follow suit. Our destiny lies in our hands

NEED OF THE HOUR

Let us remain calm. Let us present our submissions factually with evidence. Let us not be perturbed by emotions. Let us think before we speak, write or act. Let our voice be united, sober and dignified. Let us be loyal and diligent. Let us uphold the norms of the Constitution and thereby defend the Head of State who is  the Commander in Chief of the Armed Forces by virtue of the Constitution and owe allegiance as citizens of this beautiful isle which has been the subject of controversy

OUR DIGNITY & RIGHT OF DETERMINATION

We must  take effective measures to safeguard the legitimate rights and interests of the developing nations and work towards a new international political and economic order that is fair and rational. First, it is imperative to promote democracy in international relations. To respect the sovereignty, territorial integrity and political independence of all countries and resolve internal conflicts. The affairs of each and every country should be left to its own people to decide. Global challenges should be tackled through international cooperation and co-ordination.

All countries should foster a new security concept featuring mutual trust, mutual benefit, equality and cooperation and fully respect the diversity of world civilizations, and should seek consensus through dialogue, co-operation through consultation and development through exchanges.

It is imperative to work towards stability and development of the developing nations. World peace hinges on stability of the developing nations, and global prosperity rests, on growth of the developing nations. Complicated as they are, many of the issues today may have their roots found in development. Development should be the top priority of governments of all developing nations in their efforts to govern and build up their countries. It is imperative to ensure a full play of the UN’s important role in international affairs. As the most important inter-governmental organization in the world today, which represents the fundamental interests of all member countries and the aspirations of all peoples in the world, the United Nations has a lot to do and accomplish under the new situation. Therefore, it is our common responsibility and is in everyone’s vital interests to strengthen its role, safeguard its authority, increase its efficiency and promote its reform.

The Terrorism of the eleventh of September, in the USA gave rise to a “coming-together” of the people, in the finest traditions of humanity. On the twelfth of September, the Security Council and the General Assembly convened to express: their collective condolences; an unqualified condemnation of the terrorism: a determination that those responsible should not go unpunished; and firm concurrence that terrorism threatened the foundations of human society and order and would need to be, and must be, globally removed.

THE BOGOLLAGAMA DOCTRINE 

Sri Lanka has been unfortunate in not recognizing the contribution made by Rohitha Bogollagama Former Ministry of Foreign Affairs(now known as external affairs)

According to him(Daily News 19.03.2012): “The rush in Geneva in terms of bringing Sri Lanka on the agenda is unnecessary. A section of the international community with the US is now trying to pressurize Sri Lanka to implement the LLRC recommendations. Sri Lanka has already clearly shown its competence, capacity and commitment to implement the LLRC recommendations in a comprehensive manner. Putting pressure on the Sri Lankan government to accelerate the implementation of the LLRC recommendations is beyond the mandate of any group or country. Today we have been able to eliminate terrorism in Sri Lanka. Prabhakaran and the LTTE managed to drag on its armed confrontation against the conventional army of the country for 30 years because of the support they received from outside. The LTTE was not confined to Sri Lanka. They had a very well organized, able network which was well financed. Their active armed operations in India was well demonstrated when the LTTE killed former Indian Prime Minister Rajiv Gandhi. Former Sri Lankan President R. Premadasa was killed by the LTTE on the streets. Tamil scholars like Dr. Neelan Thiruchelvam and politicians such as Amirthalingam were murdered by the LTTE.  But in the middle of all these assassinations and violence, the Sri Lankan government continued negotiations with the LTTE which started from Thimpu. It reached Geneva in 2006. A section of the international community backed the LTTE and identified them as a group that had to be dealt with through negotiations. Then Prime Minister Ranil Wickremesinghe entered into a ceasefire agreement with the LTTE. We offered negotiations, peace and ceasefire to the LTTE and in return we received only death and destruction. How did the LTTE manage to go this far, if not for their international network and support system. Though the LTTE is inactive in Sri Lanka in terms of the armed movement, it is alive in the world as strong campaigners against the democratically elected government of Sri Lanka. They keep their front organizations, support groups, the LTTE section of the Tamil Diaspora that has given value to the LTTE development and formed a strong support group with the electoral strengths of some of the Western countries. Some of their groups matter to a lot of politicians in the Western world. We have seen continued targeting of Sri Lanka without leaving room for the Sri Lankan government to implement its own findings and rushing to put Sri Lanka on a multilateral agenda. The danger here is that certain sections of the international community could keep on addressing the Sri Lankan domestic issues through multilateral platforms. That could be a possibility because since we defeated terrorism it did not take long for this to be discussed in the international scene. Now the positive side is that we have always been resilient against pressures and have a very clear cut path to proceed in terms of a domestic process and now our own findings which has been acknowledged by the LLRC should be made a vehicle for political consensus and acceptance. Anything that gets implemented must be sustainable. It should not be just for the sake of implementation and to avoid pressure. This is what President Mahinda Rajapaksa explained. There is no rocket science to find what is just. What is just for the Sri Lankan society should be understood by Sri Lanka. Sri Lankan society is mature enough to carry this through within our framework. The globalized network of operational arms is in line with the R2P doctrine. No matter whether there are INGOs or NGOs, there are people who can be made to act as agents by certain vested groups who have ulterior motives on certain countries. This is a trend that has emerged in the 21st century. Therefore, it is sometimes difficult today with modern technology, such as, the Internet to create public opinion.

A lot of anti-government organizations can benefit from fundamentalist groups who have agendas to serve themselves. So any government in any country must be cautious. Good and responsible mass media can make a significant difference in this regard. Then the people will always stand by the governments than get carried away by the myths fabricated and spread by these organizations. If a country’s imports depend on foreign markets certain dictations find their way into the system. Technology etc. has to be obtained from outside. But the dependence can be minimized if we develop our own resources and if resources are being put to optimum use.We can meet our food demand by developing the agricultural sector. We can develop our milk industry to meet the country’s entire milk requirement. Then we won’t have to send housemaids to other countries and make Sri Lankans work in other countries for money which is virtually living with colonialism. Then we will not be a labour exporting country. When Sri Lanka becomes a destination/hub for health services, logistics, etc. we will need all skilled workers to work here and they will not need to go abroad. The Arab Spring is about countries which had dictatorships. Those countries did not have elections for many decades. Libya did not have elections for 42 years. Yemen did not have elections for 22 years. Leadership was passed on to the son from the father in Syria. Ours is a country with the rule of law and democracy. Elections are held on the due dates at every level. There is no comparison between Sri Lanka and those countries. We have nothing to do with the Arab Spring. There is a very good summer in Sri Lanka in terms of democracy, in terms of the rule of law etc. There is rule of law and equal opportunities for the people in this country, because we countered terrorism. We are only trying to strengthen democracy. President Mahinda Rajapaksa is trying to strengthen the democratic polity of this country, rule of law etc. He is the only strong leader who can do this on behalf of all Sri Lankans and achieve all our goals. This is because he has the support of the South and the North, and every other section in the country.The President has already proved that he can deliver by completing the humanitarian operation and bringing normalcy to the lives of all Sri Lankans. He eliminated terrorism and created a just and safe society in this country for all ethnicities. This is what the world should acknowledge. We have to take this message to the targeted sections in the world in the strongest way possible. I think the public should be conscious about international pressure because once a country is put on an international agenda, the citizens’ space to enjoy liberty and sovereignty is compromised. Therefore, the people of Sri Lanka must rally round the government, who is the custodian of the people, to avoid such developments finding their way into international platforms against the interests of the country.

PRESIDENT THROUGH ARMED FORCES SAVED THE TAMILS

We have to revive and resuscitate the morale of the people affected by the war, and their relatives all over. President Mahinda Rajapaksa has done more than the UNHRC towards the people of Sri Lanka.  So, instead of talking about the unfortunate dead let us help the people who are in the process of being settled. Let us get together and support them. The Government is doing everything possible to help them. Let us hope that such a deep sense of the “togetherness” of all of humanity will continue to be pervasive.

Terrorism is, sadly, very familiar to Sri Lanka. We, in Sri Lanka know terrorism, unfortunately, only too well. We have shown that we could eradicate it but the process is not over.. Have we eradicated Terrorism or the LTTE? Were all these terrorist activities carried out by the LTTE alone or was there a conspiracy between the other Tamil militant groups who pay lip service to democracy? The US State Department Report on Human Rights 2008 suggests that great number of Tamil militants in Colombo and beyond have been responsible for abductions, extortion and murders. This has been endorsed by the LLRC Report.

A criminal organization – whether involved in rebellion against a State or not – must depend for its sustenance outside the law. For its massive operations and massive weaponry, massive collections of funds are continually required. As funds available for criminal activities within a State, especially a developing State, are Inevitably small, and the monitoring of their collection and disbursement relatively simple, fund collection for such activities is carried out abroad – through international criminal networks, of course – and also, as in all criminal enterprises, through knowing or unknowing front organizations or other entities that now proliferate in many forms, in many countries – often in the guise, sadly, of charitable groups or groups ostensibly concerned with human rights, ethnic cultural or social matters…..The many disparate forces for international terrorism do not come together in one monolithic whole. They are variously interconnected in numerous ways and their international networks are extensive. They are mutually supportive and communicate through the global underworld of crime when special missions are afoot. If international terrorism is to be ever removed from our midst, we must begin with the recognition that international terrorism is a form of global criminality. We must not let ourselves be deceived by the artfully crafted cloaks of false pretensions. It is the method of terrorism as in the murder of innocent civilians and the defiance of the sanctity of life – that defines terrorism. We should therefore not be surprised that allegations of civilian casualty in the present times generates from certain corporate interests involved in international terrorism and their complex trade beneficiaries.

* (Dr.Telli.C.Rajaratnam is the son of Late Justice T.W.Rajaratnam Former Judge of the Supreme court and SLFP Member of Parliament(1989-1994) Grandson of Late T.C.Rajaratnam,Lawyer and Founder Member of the UNP., Grand Nephew of Late S.J.V.Chelvanayagam Q.C.,M.P.,Leader of the Federal Party and Late M.Tiruchelvam Q.C., and Minister of Local Government and cousin of Late Dr.Neelan Tiruchelvam P.c., M.P.,)Author of “Selected Essays on President Mahinda Rajapakse”(Sarvodaya Viswa Lekha Publication May 2009)and “The Dawn of Sri Lanka –The Miracle of Asia:Selected Essays on the Patriotic Legacy of President Mahinda Rajapaksa” . Chief Editor of Sri Lankan Patriot –newsline(www.srilankanpatriot.lk)