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Ugly turn in govt's war against GSP Plus privileges


 Air power - govt's trump card


Gotabaya Rajapakse and Roshan Gunatilleke

 The majority of bombs dropped on LTTE-controlled areas in air force sorties are too inaccurate to be termed precision weapons, or even near-precision weapons, and leave considerable room for civilian casualties or 'collateral damage,' according to foreign defence analysts.

The Sunday Leader interviewed Western and Asian aerial weapons experts who explained the inherent limitations in the accuracy of unguided or 'dumb' bombs dropped by aircraft on to ground targets. According to a retired  senior air force official, most of the air to ground bombs in the Sri Lanka Air Force inventory are of this variety.

Accuracy

These 'dumb' or 'iron' bombs are all made of a composite metal casing, and filled with explosives. They are available in total weights of between 500 lb (230 kg) and 2,000 lb (910 kg) depending on the hardness of their target. From this level of generalisation many varieties of explosive settings are available, from bombs that explode on impact, those that bury themselves in the ground before exploding and those that explode prior to impact, to maximise fragmentation damage.

To comment on the availability and usage practices of these weapons by the air force would risk availing the LTTE of the tactical options available to the military. Suffice to say that Air Force Spokesman, Wing Commander Andrew Wijesooriya told The Sunday Leader that the air force has a diverse range of available weapons for their bombing runs, and that they have the liberty to choose the weapon for each sortie based on the nature of the target.

All 'iron' bombs used by any air force in the world share a great common flaw. It is almost impossible to drop these weapons with any great degree of accuracy, due to variable factors such as aircraft speed, wind, bomb spin rate and individual variations between munitions. These bombs are essentially the same as those used in World War II, with the distinction that the availability of computers on modern aircraft allow the bombs to be dropped with more accuracy than back in the 1940s.

The Deputy Director General of National Intelligence, USA, Air Force General Michael Hayden, made the following comment about the evolution of bomb accuracy at a lecture he delivered in February, 2006. "Talking about the missions in 1943 and 1944, I've forgotten the precise numbers, but to have a 90 percent PK (Probability of Kill) on this room required something like 800 B-17 sorties because the Circular Error Probable (CEP) was well over a mile."

When the General speaks of Circular Error Probable (CEP), he is referring to a widely used mathematical method used to calculate the accuracy of a bomb. The CEP of a weapon is calculated by aiming several bombs at a single point, and calculating the size of the circle from the target point within which half the dropped bombs would be expected to land. In the example used by General Hayden, 800 World War II era B-17 bombers, which could carry approximately 12 medium-weight bombs each, would be required to accurately hit a target the size of a lecture hall.

Computerised

The reason for this is that since the targeting systems were completely manual, only half of the 9600 bombs dropped would fall within one mile of the intended target, which was the CEP of bombings in that era. The rest of the bombs would stray even further than a mile from their target, assuring the absolute annihilation of a large area around the target, which in his example, was a lecture hall.

The advent of targeting computers in aircraft in the years after World War II, allowed pilots to drop fewer bombs with a much greater degree of accuracy. According to General Hayden, the advancement enabled 75 Vietnam era bombers to accomplish a task that in World War II would have required 800 aircraft.

The primary evolution that caused the increase in bomb accuracy was the targeting computer's ability to take into account several natural variables such as aircraft speed and altitude to name a few, and perform real time calculations, which provided the pilot with a constantly updated pointer on his screen showing him precisely where a bomb would hit should he release the weapon at a given moment. This is known as the CCIP or 'Constantly Computed Impact Point' targeting system.

According to air-to-ground weapons specialists this method too has its imperfections, as the onus is on the pilot to release the weapon, whilst flying at high speed, at precisely the correct time. Given the speed at which jet bombers fly, pressing the trigger button even a fraction of a second late could cause the weapon to miss by several metres.

The Sri Lanka Air Force has in the past decade been able to upgrade its air to ground capabilities significantly, with more advanced computers being installed on the ageing MiG-27 and Kfir airframes, but is still utilising unguided bombs with a new targeting system.

"The new system has spelt disaster for the LTTE, and they themselves know this. Because it almost assures that the target will be destroyed, but things are still not accurate enough to avoid civilian casualties," said a former high ranking air force officer. Instead of the pilot having to aim a target on the ground, bombing computers now use GPS on the aircraft to register the location of the target.

"What the pilot has to do is fly straight and level towards the target, which he can pre-program with GPS coordinates. The computer will track the location of the target and the aircraft using GPS navigation, and alert the pilot at the optimum time for releasing the weapons to maximise the chances of a hit."

This is a system called Constantly Calculated Release Point (CCRP) which eases the burden on the pilot. "There is still a level of inaccuracy here. But as the LTTE has learnt the hard way in recent years, it is not difficult for us to drop enough bombs to ensure that a target is destroyed," said the former officer.

Risks to civilians

Pressed on the risk to northern civilians from bombs that do not hit the target, the officer was assured anonymity before answering. "They will inevitably hit other surrounding areas. There is an element of risk to civilians. We are talking of a worst case CEP in the range of 270 feet. So in theory, any civilian settlements within around 500 feet of the target could be at risk."

He said that the LTTE, being aware of these limitations for some time, has been placing certain military targets in the vicinity of civilian ones, such as schools, hospitals and residential areas. "This is a win-win situation for them. Either they hope that they will be given cover with this human-shielding, if the air force doesn't strike for fear of civilian casualties, or otherwise should civilians be killed, they can immediately turn it around in the propaganda war, as they have done several times."

The Sunday Leader also learns that there is fear among Tiger circles that the air force possesses a small number of laser guided bombs. These weapons are simply iron bombs equipped with a set of fins, so that once they are launched, they are capable of guiding themselves to a target. The catch is that they have to follow a laser pointer, which must be placed on the target.

For the bomb to hit with 100 percent accuracy, the pointer must be aimed (by an aircraft or distant ground unit) precisely on the target, and remain stationary. Under these circumstances in high visibility conditions, a laser guided bomb can hit with 100 percent accuracy.

It would not be prudent to attempt to verify whether our air force is in possession of such capability due to national security considerations, but it is now known that the LTTE has grown fearful of the military's intelligence capability, and has cordoned off large swaths of jungle in the Wanni, to try and cloak their movements. "Theoretically, a single air strike combining accurate intelligence and a precision guided weapon has the potential to decapitate the Tigers," said the retired air force officer.

False propaganda

Lasers, guidance, precision, intelligence and targets aside, the government's military propaganda campaign leaves a gaping hole in its presentation, by completely disregarding the civilian casualties that the air attacks cause. This is not to say that no precautions are taken to avoid killing civilians. Air Force Spokesman, Wing Commander Wijesooriya asserted to this newspaper that the air force targeting procedure takes precautions to ensure that there are no inhabitations around a target in order to minimise civilian casualties.

The Wing Commander was understandably clear however, that "the target comes above all else." He declined to comment on the accuracy of the weapons utilised by the air force, stating that to do so would "play right into (the LTTE's) hands" but was confident that "the targeting system used is accurate."

Finding a target accurately and bombing it accurately are clearly two different things, and TNA Jaffna District MP, Suresh Premachandran is of the view that air force bombings are the most deadly type of attack faced by civilians in the Wanni.

The TNA MP said he believes that the military deliberately turns a blind eye to civilian casualties in order to "terrorise the inhabitants of the Wanni." Premachandran stopped short of alleging that the air force deliberately targeted civilians, but said that allowing civilians to die in their numbers was a strategy used to try and spread revolt in LTTE controlled areas.

It is impossible to get any verifiable information out of the Wanni on the number of civilians killed in air raids inside the uncleared areas as the LTTE is the only authority in the area. Tiger Military Spokesman, Rasiah Ilanthirayan was unavailable for comment on the number of civilians killed.

Disputed

Premachandran disputed the oft-repeated military statements that targets are carefully selected. "How can they say that targets are selected so carefully, and that their strikes are planned with so much accuracy? Whenever anything happens in the south, the jets take off and bomb somewhere. So then there is a list of targets waiting to be bombed the moment there are attacks in the south. If these are such important military targets they would not attack them at politically timed moments."

Wing Commander Wijesooriya however told this newspaper that targets are kept under observation over a long period of time before a decision to attack is made. Given also Premachandran's observation, this gives rise to the possibility that once there is some suspicion that a target is of a military nature, a political button can be pressed - when a suicide bomb or claymore mine goes off - that leads to a decision to bomb the target without the air force's preferred method of long term observation.

Premachandran also rejected government claims about the precision of the air force targeting procedures. "Most of the time they hit civilian targets. Civilians and children get killed because of this. A lot of targets are in the towns and villages, especially in the Kilinochchi, Puddukudiyiruppu and Mullaitivu areas. The only exception is when they bomb the jungles.

"Even with the best targeting procedures and sophisticated computer technology, the bombs only have to be dropped a couple of feet off from their targets to hit the next house and kill civilians," according to Premachandran.

Chastised

He chastised the Sri Lankan media for treating the air strikes as bombing in a war zone, and not taking the viewpoint that the government is also bombing and killing its own people. "The media always reports these air strikes, but they never worry about civilian casualties."

Although the military's strategy of targeting the LTTE leadership with accurate intelligence is commendable, there is a lot to be said for recognising the possibility of putting Sri Lankan civilians at risk, and at the very least keeping some sort of track of the number of innocents accidentally killed in aerial engagements.

Given the inherent scope for an inaccuracy of several hundred feet in the air force bombings, continuing to sidestep the issue of civilian casualties will only add credence to claims by international human rights groups and LTTE sympathisers that the government is not interested in the damage it causes to the Tamil population in the north, and considers them an alien entity.


Ugly turn in govt's war against media


Susil Kindelapitiya

Sirasa News Director, Susil Kindelapitiya has gone into hiding and emerged briefly on Friday (15) to give a statement to Police Headquarters about a possible attempt on his life. While Kindelapitiya was on his regular walk on Thursday evening, two unknown men dressed like MSD officers had opened the door of his vehicle and threatened his driver.

Five media organisations issued a joint statement condemning both the incident and the lackadaisical attitude of the authorities on media freedom and threats to the safety of media personnel. The organisations called for a full and impartial investigation on the incident.

Kindelapitiya's full statement to the police was as follows:

On February 14, at about eight in the morning I was about to leave for work from my home in Dehiwela. There were two persons I had never seen before standing near my house, at the main road. My driver too noticed these men and pointed them out to me. We departed from my residence and as we passed these two men, we saw one of them remove a mobile phone from his pocket and making a phone call. After going a little further, we turned around and returned to observe them. They were still on the phone. We used an alternative route to get to office as a security precaution.

I returned home at 7:30 pm and left again at 7:45 for my regular run. We took a detour to my starting point, and I asked the driver to park at a bend near the Sallamulla junction. When I met him at the end of my run, he ran up to me looking terrified. He told me that a man had come and inspected our vehicle, before pointing out two men dressed in white shirts and black trousers, similar to MSD personnel, some distance down the road, who were looking at us. 

We had travelled a short distance away from these men, before my driver told me what had happened. He told me that while he was stopped at the bend waiting for me, these people had come and opened the front left side door of the vehicle and asked "Where? He is not here no?"

The suspicious man then closed the door and my driver drove away from them. He saw the stranger pull out a mobile phone and make a phone call. After hearing what my driver said, I called a friend who advised me to come to Kotte and meet him, so we could travel in his vehicle to my house.

It was about 9.30 when we began to travel to Kotte and I was driving the vehicle. While travelling from Gothatuwa towards Rajagiriya I suddenly saw a double cab following us. I told my driver to note the vehicle registration number, but we couldn't see it because the cab's lights were dim. The cab tried to overtake us, and I obstructed him. The cab could not come near our vehicle because close to the Rajagiriya bridge a motor cycle overtook it. Thereafter, I met my friend and went to a secure place. Given the kind of work that I do, and the kind of harassment and intimidation experienced by media personnel, I am concerned about my personal security. 

I do have my own suspicions about this incident, but at this moment I do not wish to voice them. However, I request that the authorities act to ensure my personal security. I further request that Police Headquarters refer all the information regarding my statement to the local police station, to the IGP, and to the relevant range DIG.


Bolt from the past on 13th Amendment


R. Sampanthan, M. Sivasithamparam
and A. Amirthalingam

President Mahinda Rajapakse has proposed the implementation of the 13th Amendment to the Constitution in a diluted form as the solution to the ethnic conflict when it was rejected by the principal Tamil political party, the TULF, 21 years back.

This rejection came in a letter to then Indian Prime Minister, Rajiv Gandhi and was signed by the party's top three members, A. Amirthalingam, M. Sivasithamparam and R. Sampanthan.

Ironically, it is the present President of the TULF, V. Anandasangaree President Mahinda Rajapakse is now looking to in his efforts to gain credibility for the move by offering him the post of Governor, Northern Province.

Given the significance of the content of the TULF leadership's letter to the Indian Prime Minister in the backdrop of India describing the current move as a 'welcome first step,' The Sunday Leader reproduces in full the letter dated October 28, 1987 for the readers to draw their own conclusions.

Following is the letter:

Our Disappointment With

Proposals Contained In The

Two Bills

28th Oct 1987

Shri Rajiv Gandhi,

Prime Minister of India,

New Delhi.

Dear Prime Minister,

We thank you once again for all your efforts on behalf of the Tamil people. We repeat our deep anguish at the tragic turn of events in Jaffna.

We feel it is our duty to also express our disappointment with the proposals to solve the Tamil problem contained in the two Bills - the 13th Amendment to the Constitution and the Provincial Councils Bill - presented to parliament by the Sri Lankan government.

These proposals do not meet the aspirations of the Tamil people nor are in any way, commensurate with the loss of life, sufferings and privations suffered by the Tamil people.    Since 1983, the TULF has always negotiated with the Government of Sri Lanka directly, utilising the good offices of the Government of India, and through the Government of India in the hope of evolving a comprehensive scheme of devolution which the TULF could commend to the Tamil people.

The TULF regrets it cannot recommend the contents of these Bills to the Tamil people as being satisfactory, just and durable.

On the eve of your departure to Sri Lanka to sign the agreement, we requested you among other things, that a team of experts from India along with their counterparts from Sri Lanka draft the necessary legislation. You agreed that this was a reasonable request.

Now the legislation is sought to be foisted on us without any Indian expert playing a part in the drafting.

The TULF expected all along that a copy of the draft legislation would be made available to the Government of India at some reasonable time before it was made public. Apprehending that this might not happen, a delegation of the TULF met President Jayewardene on the 29th of September 1987 and made this formal request. We regret that the Bills were gazetted without being made available to the Government of India.

This is not merely cavalier treatment of India but a clear breach of pare 2.15 of the Agreement which states inter-alia that "residual matters shall be resolved between India and Sri Lanka." The Bills are certainly not the result of any such resolution.

We do not wish to burden you with a detailed analysis of the Bills. But please permit us to draw your attention to some important matters;

1. Single Administrative Unit

After a great deal of persuasion, you got President Jayewardene to agree to one administrative unit of the Northern and Eastern Provinces as now constituted having one elected Provincial Council, one Governor, one Chief Minister and one Board of Ministers. The continuance of such a unit was to be subject to a referendum in the Eastern Province by 31st December 1988, which could be postponed by the President. We objected to such a referendum and we believed that it would eventually never be held.

The provisions of the Bills have made this political arrangement of such importance to the Tamils a farce. The setting up of a single administrative unit is to be done by an executive act of the President, in the form of a mere proclamation, which can always be revoked, and this too has to depend on the President being satisfied on a number of imponderables.

It was the Tamil expectation that a single administrative unit of the Northern and Eastern Provinces, would be firmly created by an adequate constitutional provision. The provision in Section 154 of the 13th Amendment, however, is of a dubious nature, and could be interpreted to mean that a perpetual power is vested in parliament to legislate on this all important matter. The resulting position would be that a single administrative unit of the Northern and Eastern Provinces, even when finally established would be an impermanent arrangement.

2. Legislative and Executive Power

All parties to the negotiations have always understood that the powers to be devolved to the Provincial Council will be the same as those enjoyed by a state in India with suitable adaptations. This was to be particularly so in the field of legislative and executive power.

During the discussions between the Sir Lankan Government and the TULF in July/August 1986, it was agreed that the legislative power of the province in respect of provincial subjects would be near absolute, and that the governor would be a ceremonial head, with his discretionary powers clearly defined.

The Bills retain the power of parliament to amend or repeal the chapter pertaining to Provincial Councils, and the lists of subjects, and also the power of parliament to legislate even on subjects transferred to provincial councils, by a two thirds majority, and the approval of the people of the whole country at a referendum. This would indeed be a simple exercise in Sri Lanka, where the majority community constitutes 74% of the population.

In the field of executive power, the executive power of the president is sought to be retained by providing that the governor shall hold office in accordance with Article 4 (b), which provides that 'executive power of the people shall be exercised by the president of the republic,' through the wide and undefined discretionary powers of the governor, which according to Section 154F (2) have to be exercised on the president's directions; and through powers exercisable on the proclamation of an emergency on very wide grounds.

It would be relevant to recall that between 1970 and 1987, Sri Lanka has been under Emergency Rule for more than 10 years. The Sri Lankan government has declined to accept the TULF's persistent demand that the Indian pattern pertaining to the proclamation of emergency be followed. Not merely have the justiciability of proclamations of emergency and breakdown of constitutional machinery been specifically denied, power has even been vested with the president, to make emergency regulations with respect to any matter set out in the Provincial Council List, or having the effect of overriding amending or suspending the operation of a statute made by the provincial council. Vide: Article 155 (3A).

These provisions were never accepted by the TULF - some of them were not even proposed to the TULF and we are certain that these provisions have not been accepted by India.

During discussions with the TULF the Sri Lankan government indicated that the number of ministers of the province should not exceed one third the total number of members. The North Eastern Province would have 71 members. The TULF's proposal was that the number of ministers should not exceed one-fifth the total number of Members. The number of Ministers has now been restricted to four. This has been done with the ulterior motive of promoting discord amongst the different peoples of the Northern and Eastern Provinces, and so as to diminish the importance of the provincial council and hamper and impede efficient provincial government.

3. Lists of Subjects

Though it was clearly understood that the Lists of Subjects would substantially conform to the Indian pattern, the Concurrent List has been heavily loaded, and the Provincial List clearly starved. Subjects such as Fisheries other than beyond Territorial Waters, Agriculture, Animal Husbandry, Industries, Redemarcation including creation of Districts, Assistant Government Agents divisions, and Grama Sevaka Divisions, restoration, reconstruction of destroyed towns, villages, properties, compensation or relief to persons who have sustained loss or damage, palmyrah plantation and palmyrah industry, coconut plantation and industry related thereto, the ownership, management and control of state-owned industrial enterprises within the province dependant wholly or mainly on raw materials found in the province (recommended by the Political Parties Conference), Co-operative Banks, Prisons, Provincial Public Service, Provincial Public Services Commission, Local Government Service, Inquiries, Surveys and Statistics for any of the purposes in the Provincial List and such others have not been included in the Provincial List, in keeping with the discussions held with the TULF on the basis of the Indian pattern.

In the field of Education, the powers of the Provincial Council are substantially curtailed even in the matter of secondary education.

Both the Concurrent and Reserve Lists have been so framed as to minimise to the maximum possible extent, the scope and content of the  council's powers.

4. Land and Land Settlement

On the all important subject of Land and Land settlement, Appendix-II in the Bill is in many respects even worse than the Appendix attached to the proposals of 23rd September 1986 which itself was substantially deficient.

The following matters are clearly unacceptable :

(i) The inclusion of State Land in the Reserve List,

(ii) The reference to state Land continuing to be vested in the Republic, and the power of disposition by the president,

(iii) The denial of the right to the Province, though land is a devolved subject, of the ipsofacto use of State Land for devolved subjects,

(iv) The restriction of the right of the province to administer and control only such land as is made available to it,

(v) The stipulation that the alienation and disposition of State Land within a Province to any citizen or organisation shall be by the president in accordance with "Laws" governing the matter contrary to even existing procedures for alienation,

(vi) The wide definition given to Inter Provincial Irrigation and Land Development Projects, the principle of the National Ethnic Ratio in such projects, the right given to the Government of Sri Lanka to determine the selection of allottees for such lands, designedly to perpetuate the present pernicious practices,

(vii) The failure to properly formulate the principle of the Cumulative Entitlement of the Tamil speaking people in schemes under the Mahaweli Project in the Eastern Province, and the failure to incorporate with Appendix-II the Annexure on settlement in the Eastern Province under the Mahaweli Project.

The above are clearly directed towards reducing the provincial council to the position of a nonentity in respect of State Land even though land is a devolved subject, and enabling the Central Government to have dominant power over State Land. Ample scope is also retained for the continued colonisation of the Northern and Eastern Provinces with members of the majority community.

Such a position would be completely contrary to the discussions held with the TULF and is totally different from the Indian pattern where land colonisation etc., is a state subject with no power whatever reserved to the union. The Tamils can never accept any settlement which does not satisfactorily resolve the burning question of State Land. The Land Settlement programmes carried out by the Sri Lankan Government in the post agreement period have been a major destabilising factor and do not inspire any confidence whatever in the Tamils.

5. Trincomalee Port

The subject of ports has been included in the Reserve List and the Trincomalee Port as a major port would come under central control. Annexure ' C' specifically provided that: "A Port Authority under the Central Government will be set up for administering the Trincomalee Port and Harbour. The area which will come under the administration of the Port Authority as well as the powers to be assigned to it will be further discussed." This matter was raised with the Sri Lanka Government and though apparently certain assurances were given the Bills do not contain any provision reflecting such assurances.

Tamil apprehensions are greatly aggravated by the fact that in 1984 after the finalisation of Annexure 'C' an extent of 5150 acres of land around the Trincomalee Port was vested in the Port Authority, which could result in the creation of a new township with racial overtones around the Port, and be the cause for prolonged conflict.

The manner of recruitment to employment in the port since 1983 and the facilities provided to such employees clearly indicate this trend. The TULF had given the Indian negotiators a comprehensive paper dealing with this subject. It is essential that this matter too be resolved in an acceptable manner,

6. Provincial; Public Service

The provisions in respect to the Provincial Public Service and the Provincial Public Service Commission have been included in the Provincial Councils Bill contrary to the Sri Lankan government's draft proposals for the amendment of the constitution of 23rd September, 1986 which categorically stated "Provision regarding Provincial Public Service to be included."

The appointment, transfer, dismissal and disciplinary control of Provincial Public Servants being vested in the governor who is subject to presidential directions is contrary to the proposal made by the TULF that the provisions of Article 55 which vests the appointment, transfer, dismissal and disciplinary control of public officers in the Cabinet of Ministers be made mutatis mutandis applicable. This together with the omission of the subjects of the Provincial Public Service and the Provincial Public Service Commission from the Provincial List, suggest that the Provincial Public Service will not function under the executive control of the Provincial Board of Ministers. Effective provincial government would be an impossibility in this situation.

Contrary to the belief that the chapter pertaining to Provincial Councils would confer on the provinces a measure of credible autonomy without derogating from the entrenched clauses in the constitution, the present Bills at every turn, enable parliament and the central executive, to extend its tentacles into the provincial sphere circumscribing and emasculating the exercise of even the powers conferred on the province.

7. Tamil as Official Language and matters relating to the Central Government

The provisions in Clause 2 of the 13th Amendment making Tamil also an Official Language has been nullified by paragraph (4) which states that "Parliament shall by law provide for the implementation of the provisions of this Chapter."

In relation to Sinhala as the Official Language, the constitution provides for the manner of its use. The same constitutional provisions should be made applicable to Tamil also as an Official Language.

Besides these there are other matters regarding the rights of the Tamils in relation to the Central Government which have to be discussed and resolved.

In view of the above we earnestly request you to ask President Jayewardene not to proceed with the two Bills in Parliament in the present form till the matters referred to herein, are discussed and resolved to the satisfaction of the Tamil people.

We request that we be granted an early appointment to discuss these matters more fully with you.

With kind regards,

Yours Sincerely, 

M. Sivasithamparam, President, TULF 

A. Amirthalingum, Secretary General, TULF

R. Sampanthan, Vice-President, TULF former MP for Trincomalee


GSP Plus privileges:  The need for constitutional amendment

By Rohan Edrisinha and Asanga Welikala

There has recently been speculation and media reports about the European Union's system of tariff preferences known as the 'GSP Plus' programme, of which Sri Lanka is presently a beneficiary country.

The tariff preferences create massive advantages in particular to our apparel industry, and have implications for the wellbeing and employment for thousands in that important sector of our economy. It is vital, therefore, that Sri Lanka retains this privilege.

The controversy relates to the fact that Sri Lanka's continued beneficiary status comes up for renewal later in 2008, and whether Sri Lanka continues to qualify for the GSP Plus benefits in terms of the requirements that are set out for this by the European Union. One of the important requirements to qualify is that the beneficiary country is placed under a general obligation to 'ratify and fully implement' a set of 27 international conventions. One of the key international human rights conventions listed under the relevant EU law is the International Covenant on Civil and Political Rights (ICCPR).

Acceded to ICCPR

Sri Lanka acceded to the ICCPR in 1980, and to its First Optional Protocol (which allows individuals to address complaints against violations of rights recognised by the ICCPR directly to the Human Rights Committee in Geneva) in 1997. The latter accession was largely the initiative of former Minister of Foreign Affairs, the late Lakshman Kadirgamar, PC, MP.

However, the Supreme Court decided in the case of Singarasa v. Attorney General (2006), that while the accession of Sri Lanka to the ICCPR was legal, valid and bound the State at international law, it created no additional rights (as recognised in the ICCPR) for Sri Lankan citizens in the absence of domestic legislation.

That is, without our parliament having enacted the provisions of the ICCPR into Sri Lankan law. The court presumed that the Sri Lanka Parliament had not so enacted the ICCPR, because those civil and political rights already found expression in the chapter on fundamental rights of the Sri Lankan Constitution (1978).

The Supreme Court also went on to hold that the accession to the First Optional Protocol was invalid and unconstitutional, because in the view of the court (wrongly, in our view), recognising the jurisdiction of the Human Rights Committee was an unconstitutional alienation of the sovereign judicial power of the people of Sri Lanka.

Full implementation

Given that the requirement under the GSP Plus scheme is ratification and full implementation of the ICCPR, and not the First Optional Protocol, we will only focus on the ICCPR here, although we believe the Supreme Court's decision has deprived Sri Lankans of an important avenue of human rights protection.

We would moreover add that in a recent Supreme Court order (in the case of The Joint Apparel Association Forum and Others v. Sri Lanka Ports Authority and Others (2008)), the court refused to grant costs to the respondent trade unions on the ground that the unions had made applications to the Freedom of Association Committee of the ILO whilst the fundamental rights action was pending.

In the view of the court, the unions were not entitled to seek redress from an external body while their matter was pending before the court, even though within Sri Lanka's obligations under the ILO conventions, the right of access to the treaty-body is recognised.

Whether or not the government agrees with the reasoning of the Supreme Court, it remains bound by the court's decision; in which case the question arises as to what steps the government intends to take to comply with the requirement of the GSP Plus scheme that Sri Lanka should not only 'ratify' but also 'fully implement' the ICCPR (among other international treaties such as the ILO conventions).

Title a misnomer

Late in 2007, the government passed the International Covenant on Civil and Political Rights Act, No. 56 of 2007 (the ICCPR Act). The title is a complete misnomer that misleadingly gives the impression that its purpose is to enact the ICCPR into domestic law. The ICCPR Act contains only four main substantive rights-conferring provisions in Sections 2, 4, 5 and 6: viz., the right to be recognised as a person before the law; entitlements of alleged offenders to legal assistance, interpreter and safeguard against self-incrimination; certain rights of the child; and right of access to state benefits, respectively.

Furthermore, these provisions are formulated in terms substantially and significantly different from the corresponding provisions of the ICCPR.

If the argument is that the rights recognised by the chapter on fundamental rights of the constitution substantially give effect to other rights in the ICCPR, we would also strongly reject that view. We do so for the following reasons.

Scope of rights

Firstly, there are a number of ICCPR rights which are not recognised by the Sri Lankan Constitution or law. These include the right to life; freedom from negative discrimination on the basis of national or social origin; freedom from forced or compulsory labour; the security and liberty of persons deprived of liberty; the right to compensation for unlawful arrest or detention; right to require free consent to medical or scientific experimentation; right to leave the country; rights of minorities, including in respect of religion, language and culture; and the right to privacy.

Secondly, the issue of the scope of rights in the manner in which they are drafted in the ICCPR as compared to the Sri Lankan Constitution and law. For example, Article 14 (1) (a) of our constitution guarantees the right to free speech in the following terms: "Every citizen is entitled to - the freedom of speech and expression including publication."

In the corresponding provision, Article 19 of the ICCPR, this right is framed in much wider and elaborate terms to include the right of persons to hold opinions without interference, to receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of a person's choice.

Thirdly, the framework for restrictions of fundamental rights. In this regard there are two basic criticisms that can be made with respect to the Sri Lankan Constitution's provision for permissible restrictions on fundamental rights in Article 15.

The first is that the permissibility of restrictions are framed in subjective terms, and do not require a threshold of substantive justification prior to imposition of restrictions by recourse to standards such as 'necessity in a democratic society', 'reasonableness' and / or 'proportionality' that are required by the ICCPR, and indeed many modern constitutions.

While it is true that in some instances, our Supreme Court has read requirements similar to these in its fundamental rights case law, we would nonetheless argue that this is not the same thing as having these requirements enshrined in the text of the constitution itself.

Classes of restrictions

The second criticism is that Article 15 of our Constitution speaks merely of 'restrictions' and do not make the distinction between classes of restrictions such as 'derogation', 'restriction' and 'limitation' in the way the ICCPR and modern constitutions do. Thus it is not explicit in the text as to what rights may be completely suspended (i.e., derogated from), what rights are absolutely non-derogable under any circumstances, what rights may only be restricted to some extent but not wholly suspended and so on. 

More generally, there are several features of our constitution that fall short of the human rights standards established by the ICCPR. Prominent among these is Article 16 of the Constitution, which validates all written or unwritten laws existing prior to 1978 (i.e., the year in which the present constitution was enacted) notwithstanding inconsistency with fundamental rights and the constitution.

This illogical provision goes against all norms of modern constitutionalism, which holds that the constitution is supreme and all other laws inconsistent with the constitution must be invalid. In this context, it is difficult to claim that the fundamental rights chapter in effect provides the standard of human rights protection required by the ICCPR.

Even with regard to those laws that are enacted after 1978, Article 80 (3) prohibits the judicial review of legislation for constitutionality, bar the very limited provision for pre-enactment review, which is in practice almost entirely ineffectual.

Article 16

We are mindful that Article 16 has been defended in some quarters as being essential for protecting the integrity of our customary and personal laws (i.e., Kandyan law, Thesawalamai and Muslim law). But we would point out that if this was the need, then Article 16 could easily be drafted more narrowly to capture only these laws within its scope rather than all existing law, even if inconsistent with the constitution. 

A further general point to note in respect of the 'full implementation' of the ICCPR is that Article 126 of the Constitution vests the sole and exclusive jurisdiction in respect of fundamental rights with the Supreme Court. While at first glance this might seem to be an indication of the seriousness accorded by our constitution to fundamental rights, international best practice, and indeed our own experience suggests that, there should be provision for at least one appeal from a decision of any court.

This will also free the Supreme Court from the burden of trying facts, only take up cases of constitutional significance on appeal, and thereby be able to articulate a more coherent fundamental rights jurisprudence.

Appalling feature

One final general point we would make is with regard to the appalling feature of Sri Lankan governance in which laws and even significant parts of the constitution remain unimplemented. For example, in the case of the 17th Amendment, its non-implementation can only be described as resulting from an intentional violation of the constitution. In these circumstances, it is difficult to accept the argument that the Sri Lankan Constitution and the law affords citizens a standard of human rights protection even remotely comparable to that envisaged by the ICCPR. Ratification and full and effective implementation are essential.

For all these reasons, we are convinced that effective implementation of the ICCPR requires constitutional amendment, which in the case of the ICCPR would require a two-thirds majority in parliament, but not a referendum. Given that 'full implementation' of the ICCPR is a pivotal requirement of the GSP Plus scheme, upon Sri Lanka's continuing qualification for which, to a not inconsiderable extent, depends the health of our apparel industry and the livelihoods and jobs of thousands of garment sector employees and their dependents, the primary responsibility for initiating constitutional change lies with the government.

It is also incumbent on other parties represented in parliament, particularly the United National Party, to support the government in such a measure and ensure the required two-thirds majority is obtained.


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