The parliamentary Committee on Public Enterprises (COPE) put out an excellent report last week. It can be considered excellent in view of the low participation rate of the two main opposition parties, the UNP and the JVP, in its work. There were two UNP parliamentarians, Ravi Karunanayake and Dayasiri Jayasekera, and two JVP MPs, Anura Kumara Dissanayake, and Sunil Handunnetti on COPE. But of the 21 meetings that COPE held, Ravi K had attended five meetings, Dayasiri Jayasekera 10, Anura Dissanayake four and Sunil Handunnetti seven. When the opposition parties fail to attend meetings of these watchdog bodies such as COPE, they lose the opportunity to question the officials summoned before the committee. It would appear that the opposition was not overly enthusiastic about its job of watching over the public interest.

Given the fact that last week’s COPE report was largely a self examination by the government of its own conduct, what emerged was not bad at all even though it is but a poor shadow of the previous COPE report which had sensational exposes of governmental corruption.

Despite its limited and non-controversial nature, the latest COPE report has some important recommendations. One very important recommendation made was that all public enterprises should consult the attorney general’s department in all important legal matters. This was in reference to the ‘hedging deal’ entered into by the Ceylon Petroleum Corporation where the AG was not consulted and legal advise had been sought from a private firm called Nitya Partners. On the day that the CPC was hauled before COPE, all four opposition members were present which is probably why something constructive was achieved.

COPE report

Upon being questioned, the then CPC Chairman and DGM Finance had confirmed making overseas trips on tickets provided by Citibank and Deutsche Bank. COPE has also criticized the manner in which both the cabinet and the CPC board had been manipulated so that a blanket approval was obtained for the questionable hedging deal. Another important recommendation made in the COPE report was that a proper credit policy for public enterprises be established because some public enterprises had granted ‘massive sums of credit’ to customers resulting in serious liquidity problems. (The CEB’s debt to CPC woud be one example of the phenomenon COPE was trying to address.) In this report, COPE has also tried to deal with the problem of some government institutions trying to avoid scrutiny by claiming that they were registered under the Companies Act. To get around this problem, the COPE report has recommended that any company with a shareholding of 15% or more by the government should be brought within the ambit of the Public Accounts Committee and COPE itself.

Despite all the sound and fury of the UNP working committee meeting the week before last, Ranil Wickremesinghe is as much in control of the UNP as Mahinda Rajapakse is of the SLFP – the only difference being that Wickremesinghe has to face frequent abuse and insults – not a major problem for the UNP leader who has a skin that would make a rhinoceros jealous. The week before last, Kurunegala district parliamentarian Dayasiri Jayasekera resigned from the UNP working committee in protest at the way positions were given out in the Kurunegala district. But this should not be interpreted as another defection from the party. Dayasiri resigned only from the working committee of the party – he still continues to be a member of the political affairs committee. When this columnist asked Jayasekera what he hopes to achieve by resigning, he said that what he expects if for decisions of the working committee to be implemented.

He specifically sated that he is not going to speak to the newspapers and do anything that would weaken the opposition and strengthen the government. He stated that he will not leave the party but will do what is necessary to change certain things from within. So basically Jayasekera’s resignation is not aimed at having Wickremesinghe ousted. He did however describe the UNP reformists as people engaged in ‘an honest attempt to make the UNP win’. Readers will remember that at the last working committee meeting, Wickremesinghe himself described the UNP reformists as agents of the government.

The political affairs committee of the UNP met again last week, but that was not to discuss the leadership qualities of Wickremesinghe. Last week’s meeting was a spinoff from the previous meeting where the PAC had made the decision that Talatha Atukorale would be the district leader of Ratnapura. Dunesh Gankanda, the other remaining UNP parliamentarian in the Ratnapura district and contender for the district leadership had wanted a hearing from the PAC. Gankanda had argued that Atukorale was the head of the UNP women’s league and that she could not be the district leader as well. But S.B.Dissanayake, Johnston Fernando and the others had explained that Talatha had got over 100,000 votes while Gankanda had less than half that, and that the district leader should be someone commanding more votes.

As the arguments went back and forth, Karu Jayasuriya suggested that the results of the mini-election in Ratnapura had come in and he suggested that they should open the ballot box and decide who the district leader was going to be. Johnston Fernando had objected to this suggestion saying that when Justin Galappaththy was removed from the position of district leader of Matara and Sagala Ratnayake was appointed, there was no election and there can’t be different procedures for different people.

UNP’s travails

One member of the PAC had also found fault with Gankanda for trying to blackmail the party into making him district leader by saying that he was going to leave if he is not given that position. After discussing things at length, the PAC came once again to the conclusion that it has to be Talatha Atukorale who is appointed as the district leader of Ratnapura. Gankanda had left the meeting completely dissatisfied. One of the reasons why district leaderships have become such a contentious issue is that there will be a parliamentary election within the next several months and the UNP vote base is shrinking and politicians are fighting for a share of the shrinking pie. The district leader will always get a preference vote from the UNPers in the district. There is the possibility that Ranjan Ramanayake will contest the parliamentary election from the Ratnapura district. He got well over a hundred thousand votes at the Sabaragamuwa PC election. So for those like Gankanda, having the district leadership may make the difference between getting re-elected to parliament or getting knocked out.

As the PAC meeting was about to wind up, Joseph Michael Perera brought up the issue of the JVP’s demand that the executive presidency should be abolished and said that the UNP should support this demand. Ranjith Madduma Bandara said that the UNP adopted such a resolution many years ago; in the intervening period, the party had contested two presidential elections and lost. He said that the party should be careful about making this look like a case of sour grapes to the voting public. Ravi Karunananayake said that the UNP should also declare for the abolition of the executive presidency. (Being a protégé of the late Lalith Athulathmudali, Ravi K has been consistent throughout the years on the need to abolish the executive presidency.) This issue was however not discussed seriously in the PAC. John Amaratunga had said that ``we are definitely going to lose the next presidential election if Ranil or anyone else contests.’’ The UNP might as well oppose a position that they are sure to lose. The PAC meeting had ended amidst loud guffaws. As the meeting ended, Johnston Fernando had asked Karu Jayasuriya about the implementation of the decisions it made. Jayasuriya had promised that he would be taking these matters up with the party leader.

EU’s faulty case

One of the three documents specifically mentioned in the European Commission decision of October 14, 2008, instituting the ongoing investigation against Sri Lanka was the statement of Manfred Nowak, the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of October 29, 2007. As we pointed out last week, UN Special Rapporteurs act as independent individuals and they can be as biased or as balanced as they wish. The approaches of individual Rapporteurs can differ widely. The statement by the UN Special Advisor on children and armed conflict, Allan Rock was obviously biased and misleading as we pointed out last week. In distinct contrast to him, Manfred Nowak, the UN Special Rapporteur on Torture, has been very balanced and fair. Nobody can really find fault with what the Special Rapporteur on Torture has said about Sri Lanka. In a nutshell, what Nowak has said is firstly that torture is still widely practiced within the criminal justice system in Sri Lanka and that the prisons in Sri Lanka are seriously overcrowded.

Nobody is going to dispute that. But some of the ways that Nowak arrived at his conclusions can be debated. For example, he bases his observation that torture is still widely practiced in Sri Lanka on the fact that firstly the attorney general’s department had filed a high number of indictments for torture, secondly that a high number of successful fundamental rights cases have been processed by the supreme court and thirdly that the Sri Lanka Human Rights Commission continues to receive complaints of torture on a daily basis. It might be appropriate to point out that while this is no doubt an indication that the incidence of torture is still high, it is also an indication that something was being done about it and that those accused of torture were not getting off Scot free.

Of course elsewhere in his report Nowak does observe that Sri Lanka already has in place mechanisms to prevent torture and combat impunity such as fundamental rights litigation, bringing suspects before a magistrate within 24 hours, formal medical examinations by Judicial Medical Officers, and investigations by the Sri Lanka Human Rights Commission, and so on.

Nowak also commends the setting up of the Special Investigations Unit in the police and the Prosecution of Torture Perpetrators unit in the attorney general’s department to deal with the investigation and prosecution of torture cases. Despite all this, Nowak points out that torture such as beatings is widely practiced. Nowak also takes exception to the overcrowding in the prisons system, which has a capacity of 8,200, but has an actual population of 28,000! He also speaks of the cells in police stations not having proper ventilation and so on. To cut a long story short, let’s just simply say that everything said in Manfred Nowak’s statement of October 29, 2007, is true. The issue at hand here however is not discussing the points raised by Special Rapporteur Nowak, but the question of the European Union trying to use this report to deprive Sri Lanka of a vital trade concession GSP+, which allows duty free exports from Sri Lanka to the EU.

Common sense would say that if the EU was genuinely concerned about overcrowding in Sri Lankan prisons, what they should do is to give Sri Lanka a generous grant to build proper prisons or at least a concessionary loan like the one given to Sri Lanka recently by China to build houses at just 2% interest. In fact Novak has called upon the international community to support Sri Lanka in finding solutions to the problems he has pin pointed.

The problems pointed out by Novak are not going to be solved by suspending GSP+. If a few rotten cops practice torture, what is the point in punishing thousands of industrial workers who have never tortured anybody? In just the past couple of weeks there were two celebrated cases of police stupidity - the Angulana double murder and the Malabe SLIIT assault case. All the cops alleged to be involved are now in remand prison. These incidents were of course aberrations as the vast majority of police officers are not that stupid. These incidents have been a huge embarrassment to the government and even to us ordinary citizens – that such things can happen in Asia’s oldest democracy. The point however is that the Angulana and Malabe incidents have nothing to do with exports to the EU.

Whatever the EU does should accord with commonsense as well as the law. The World Trade Organisation (WTO) is the body that regulates world trade. The EU cannot have any laws pertaining to international trade in violation of the WTO rulings. The EU’s GSP+ scheme is also based on certain decisions handed down by the WTO. For over six decades the WTO and its predecessor GATT (General Agreement on Trade and Tariffs) worked to establish the principle of non-discrimination in world trade. In a ruling specifically given to the EU, the WTO ruled that there can be no discrimination between countries ‘similarly situated’. What this means is that if ten people are caught in the act doing something wrong, you can’t prosecute one and let the others go free – you have to either prosecute all of them, or let them all go free. Virtually everything that Manfred Nowak said about Sri Lanka in the report examined above, has also been said of all other recipients of GSP+. Indeed, the conditions mentioned by Nowak, are endemic throughout the developing world. If that is the case, on what grounds was Sri Lanka singled out for investigation? The following is what the US State Department Advancing Freedom and Democracy Reports of May 2009 had to say about the human rights conditions in various recipient countries of GSP+, (quoted verbatim).

Guatemala: "Although the government generally respected the human rights of its citizens, serious problems remained, including: widespread societal violence; arbitrary arrest and detention; substantial inadequacies in the police and judicial sectors; lack of respect for the rule of law; systemic impunity and corruption; violence and intimidation against journalists and human rights defenders; violence against women; trafficking in persons; discrimination against indigenous people; ineffective enforcement of labor laws; and child labor. Continued infiltration by organized crime into public institutions and widespread concern over violence and lack of security undermined citizen confidence in the government and eroded support for democratic institutions".

Colombia: "Although the government’s respect for human rights has continued to improve, serious problems remain. Societal problems and human rights abuses included unlawful and extrajudicial killings; forced disappearances; insubordinate military collaboration with illegal groups; torture and mistreatment of detainees; overcrowded and dangerous prisons; arbitrary arrest; a high number of pretrial detainees, some of whom were held with convicted prisoners; impunity, corruption, and an inefficient judiciary subject to intimidation; harassment, intimidation, and violence against labor leaders, journalists, and human rights activists; violence against women and children; trafficking in persons for commercial sexual exploitation; societal discrimination against women, indigenous persons, and minorities; and illegal child labor".

Bolivia: "Human rights problems included abuses by security forces; harsh prison conditions; arbitrary arrest and detention; attacks on the judiciary by the executive branch; threats to press freedom and other civil liberties; use of excessive force and other abuses in internal conflicts; corruption and a lack of government transparency; discrimination based on gender, ethnicity, and sexual orientation; trafficking in persons; child labor; forced or coerced labor; and brutal working conditions in the mining sector".

Ecuador: "While the government generally respected the human rights of its citizens, problems continued in the following areas: isolated unlawful killings and excessive use of force by security forces; killing and abuse of suspects and prisoners by security forces; poor prison conditions; arbitrary arrest and detention; a high number of pretrial detainees; corruption; denial of due process; violence and discrimination against women; discrimination against indigenous persons, Afro-Ecuadorians, and homosexuals; trafficking in persons; commercial sexual exploitation of minors; and child labor".

Honduras: "While civilian authorities generally maintained effective control of the security forces, there were instances in which elements of the security forces acted independently of government authority. An inefficient judicial system and the growing presence of drug traffickers and gangs undermined the government’s ability to protect adequately its citizens. Human rights problems included: unlawful killings by members of the police and government; arbitrary and summary killings committed by vigilantes and former members of the security forces; corruption and impunity in the legislative, judicial, and executive branches and the security forces; failure to provide due process of law; lengthy pretrial detention; erosion of press freedom; violence and discrimination against women and persons based on sexual orientation; discrimination against indigenous communities; child prostitution and trafficking in persons; ineffective enforcement of labor laws; and child labor".

Nicaragua: "Other human rights problems included: unlawful killings by security forces; lack of respect for the rule of law; systemic corruption and politicization of the Supreme Electoral Council, judiciary, and other state institutions; erosion of freedom of speech and press; substantial government harassment of NGOs; violence against women; discrimination against ethnic minorities; and violations of trade union rights".

Paraguay: "Although the government generally respected the human rights of its citizens, there were serious abuses in some areas, including killings, torture and abuse by government agents; political interference, corruption, and inefficiency in the judiciary; lengthy pretrial detention and overcrowded prisons; harassment and intimidation of journalists; trafficking in persons and exploitative child labor; and discrimination against minorities".

Similar observations have been made regarding Azerbaijan: Venezuela:

 There are reports by UN Rapporteurs on certain GSP+ recipient countries which elaborate and expand on the accusations in the US State Department reports. The report of the UN Special Rapporteur on extra-judicial, summary and arbitrary executions Ms Asma Jehangir on Honduras of the 14th June 2002, the report of the Special Rapporteur on extrajudicial executions (Philip Alston) on Guatemala, of the 19th February 2007, and the Statement by Philip Alston, UN Special Rapporteur on extrajudicial executions Mission to Colombia 8-18 June 2009 can be cited as examples. Some of the allegations leveled at these countries are even more serious than those leveled against Sri Lanka. The WTO appellate body ruling that made GSP+ possible has stated very clearly that there can be no discrimination between similarly situated countries. All GSP+ recipient countries have the problems that Manfred Nowak mentioned in his report on Sri Lanka.