A post-mortem on Navi Pillay’s visit by Udaya Gammanpila
Madam Navi Pillay, United Nations High Commissioner for Human Rights, concluded her Sri Lankan tour last week. It was her longest foreign tour. The objective of her visit was to investigate and report to the United Nations Human Rights Council (UNHRC) at its 24th and 25th sessions about the alleged war crimes committed during the last phase of the war against the Liberation Tigers of Tamil Eelam (LTTE). We, the Jathika Hela Urumaya (JHU), objected to her arrival on the basis that prima facie, she did not appear to be impartial.
We pointed out several justifications for our stand including her Tamil origin, her gratitude to the Tamil community for its support towards her higher education, being a victim of racial riots in 1949, reflection of her community conscious mindset in her struggles for women and minority rights and her close relationship with Yasmin Sooka, who was a member of the committee that reported to Ban Ki-moon about Sri Lanka having committed war crimes by allegedly killing 40,000 Tamil civilians.
We further pointed out that Pillay’s husband was a terrorist suspect and she was one of the most sought after lawyers by terrorist suspects in South Africa during the Apartheid era. We also stated that she had issued statements even during the war, which alleged that Sri Lankan forces were committing war crimes. Despite our protests, the government not only invited her to visit Sri Lanka but also expressed confidence in her impartiality.
Some writers criticized our objection, stating that we should not have disapproved of her, as her appointment was unanimously endorsed by the United Nations. Our response is, if the issues raised by us had surfaced before her appointment, she would have lost the post. However, the unanimous endorsement does not prevent the application of the principles of natural justice in her conduct. Nemoiudex in cause sua is a universally accepted principle of natural justice, which says nobody should hear one’s own case. In other words, no person should judge a case in which he/she has an interest. That is why judges withdraw from cases in which their friends and relations are involved in.
In light of the above, she should not have come to Sri Lanka to investigate into alleged war crimes against Tamil civilians in the war against the Tamil terrorists, because of her attachments to Tamils, terrorist suspects and the panel who originally levelled this allegation. During her stay, she behaved as we predicted, justifying our objection to her visit. A critical review of her visit reveals her biased conduct.
When Navi Pillay met the Minister of Justice, she made a very interesting comment. She criticized the establishment of a separate Ministry for Law and Order and said the Police Department should come under the Ministry of Justice. Her mandate is limited to human rights and she should have held her discussions within her scope. There are several international treaties, covenants, declarations and resolutions on human rights. None of these instruments has brought the distribution of ministerial subjects within the definition of human rights. Hence, this is a clear example for exceeding her mandate.
Distribution of ministerial subjects is a sovereign matter. In this context, she has grossly violated our sovereignty by interfering in an internal matter. Pillay’s out of context criticism of the Sri Lankan Government clearly reflects her anti-Sri Lanka mindset. If this is within her mandate, she should have given this advice to the government in her own country, before advising Sri Lanka, as South Africa has two separate ministries for Justice and Police.
Power devolutionPillay had asked the Justice Minister whether the government intends to withdraw certain powers vested with the Provincial Councils. She should not have raised this question at all, as devolution of power does not fall within the ambit of human rights. At least, it has not been recognized as a minority right in the United Nations Declaration of Minority Rights of 1992. There is no international treaty on devolution of power. However, the withdrawal of powers vested with the Provincial Councils is of concern to Tamil activists, especially to the Tamil National Alliance (TNA), which aspires to capture power in the Northern Provincial Council at the forthcoming election. When Pillay asked this question, she was in the shoes of not the Human Rights Commissioner, but a leader of the TNA.
Many countries including France and Norway, which have been trying to coerce Sri Lanka to devolve power in a federal system, maintain strong unitary constitutions. Hence, Pillay should have advised these countries to also devolve power. In her long career, she has never advised any nation to devolve power. This out of mandate question to the minister clearly reflects her attachment to the Tamil community and her burning desire to ensure the aspirations of Tamils in Sri Lanka are met.
She also endeavoured to strengthen the TNA’s campaign for further devolution of power when she met the NGO representatives in Jaffna. She told them that there should be a mechanism to obtain views of the Northern people for policies and projects that are to be implemented in the North. In other words, she may have meant that these projects should have been managed by the representatives of Northerners in Provincial Councils and local authorities, instead of the Central Government.
When Pillay met the members of the United National Party (UNP), their focus was establishment of independent commissions. Such commissions definitely do not fall within the subject of human rights. There is no international obligation for Sri Lanka under any treaty to establish such commissions. As a result, she has no business whatsoever to endorse such commissions, which move once again violates our sovereignty.
Although Western powers such as the USA force us to establish independent commissions, they have not established those. They consider such commissions to be anti-democratic, and serves to promote bureaucracy. Politicians appear before the public at the end of their term for judgment about their performance and conduct. Bureaucrats continuously work for more than 35 years without being subjected to public judgment. When the supervision of the bureaucrats is given to a few commissioners who also never appear before the public, the State mechanism loses public accountability. That is why the West prefers political supervision over independent commissions. For instance, the US President makes approximately 14,000 political appointments during his term. In this backdrop, Pillay should have commenced her advocacy for independent commissions from the USA.
Pillay chose to place a flower wreath at Vellamullivaikkal, where the LTTE leaders died in the battle, without consulting the Government of Sri Lanka. This shows how emotional she is about the LTTE’s struggle for a separate Tamil state in Sri Lanka.
Close analysis clearly shows her biased and emotional conduct throughout of her tour in Sri Lanka, as was predicted by us. This tour made her views authentic, legitimate and acceptable. Until September 2013, she was expressing opinions about Sri Lanka, depending on hearsay. However, she has now not only visited Sri Lanka but has also exchanged views with most of the stakeholders of the conflict. Hence, she can speak about Sri Lanka with great authority. In this backdrop, Sri Lanka can feel the negative consequences of her visit at the 24th and 25th sessions of the UNHRC and thereafter. I am sure she would make Sri Lanka regret inviting her to visit the country.