26 July 2017

What does UN Under-Secretary-General Feltman
have to do with our Constitution?


by Sanja De Silva Jayatilleka

Jeffrey Feltman, the UN UnderSecretary-General for Political Affairs, heads the Department of Political Affairs at the United Nations in New York. The main role of the department according to its website is to prevent and resolve deadly conflict. It is also tasked with detecting potential crises and deploying mediators to the frontlines of conflicts. It contributes to UN efforts to promote peace and prevent conflict by coordinating UN electoral assistance. It also provides expertise on preventive diplomacy which is used for "peaceful resolution of tensions" and to "discourage the use of violence at critical moments".

Now which of these duties was the Under Secretary General here in Sri Lanka to perform, and why? There is no situation of crisis or any warring parties between whom he has to intervene.According to the media, he is here not for any of the above but to assess the progress on our constitution making process. Why would a UN Secretary–General on Political Affairs look into our Constitution-making process?

The Constitution making process is solely and exclusively the responsibility of the legislature of the sovereign nation of Sri Lanka. It is to the legislators elected to Parliament by popular vote that we, the citizens, have given the responsibility of carrying out that duty on behalf of the sovereign people of Sri Lanka. And they should take as long as they feel is necessary to debate the issue and get it right.

How is it the responsibility of a UN official to monitor its progress? Sri Lanka is engaged in the most democratic of processes, of debate and discussion on its Constitution which embodies the sovereignty of this island. The UN institutions have absolutely no role to play in that process. The very notion impinges on Sri Lanka’s sovereignty.

According to The Island, "Feltman’s focus was certainly on the Constitution-making process now taking place in accordance with the Geneva resolution 30/1." What has the Geneva Resolution got to do with an Undersecretary General who operates from New York? Has the Human Rights Council invited him to follow up? Unlikely, since the Council’s follow up is usually undertaken by the staff of the Office of the High Commissioner for Human Rights (OHCHR) and not at such a senior level as an Under Secretary General.

Resolution 30/1, in the relevant Operative Paragraph 16 says "Welcomes the commitment of the Government of Sri Lanka to a political settlement by taking the necessary Constitutional measures…" It doesn’t use the words "Requests" or "Urges" or similar wording, nor does it stipulate a time frame because it is outside the scope of the UN to do so. "Welcomes" shows that the Council approves, not dictates, and recognizes that it is the process that Sri Lanka has to carry out according to its own laws. Therefore it is unclear as to the exact role that Under Secretary General Feltman is expected to play vis-à-vis our Constitution making process or its progress or the final decision of the constitutional assembly.

Did the UN Under-Secretary General think of it himself or did our government invite this UN official to evaluate our progress? And if so, on what basis did the either the UN USG or the Government do so, considering that the UN charter specifically prohibits interference in the internal affairs of a sovereign nation.

Or is it the case that the new Government is under the wrong impression that there is an entity which sits above the member states of the UN, a "supra national body", made up of UN officials such as the Secretary General and his staff,the High Commissioner for Human Rights and the officials at the Hague and the ICC, civil society and international law experts, making up a World Government to which all the member states of the UN have ceded their sovereignty?

Or could it be that this Government has lost its authority and credibility, and thinks that parading various UN officials regularly in Colombo will impress the people of Sri Lanka and scare them into compliance with their particular Constitucional, ‘reconciliation’ and ‘reform’ agenda? Is it somehow regarded as useful pressure on those who oppose the Government’s view, or dissenting views within the Government itself, of how things should proceed?

This visit comes close on the heels of the visit of the UN Special Rapporteur Ben Emmerson, QC. English-language daily newspaper reports that the view of "the Ministry" was that member states recommended standing invitations to all Special Rapporteurs at the Universal Periodic Review (UPR). Recommendations are not edicts. In 2008, France recommended that Sri Lanka should ratify the Rome Statute on the International Criminal Code. Sri Lanka rejected that recommendation. States undertake those recommendations at the UPR that they agree with and reject others. That is the procedure of the UPR process.

Minister Mangala Samaraweera, however, accepted the recommendations on standing invitations. In December 2015 he accepted standing invitations to ALL Special Procedures mandate holders, which the USA and several other countries have not.

Countries have a right and a duty to safeguard their own security and to make considered decisions as to the access they grant to officials. Access to certain places should have been negotiated by the SL Permanent Mission in Geneva on instruction from the Ministry, which should have consulted widely with all stakeholders, most crucially the Ministry of Defense and the Ministry of Justice (and not only that of Law and Order) before being finalized.

The Special Procedure Mandate Holders in their annual meeting decided that they should have free access to all parts of a country during their country visits and included it in their Terms of Reference. However, this is not a UN resolution and it is the responsibility of states to weigh in the balance its own security and other considerations before granting free access. In Geneva, Sri Lanka has negotiated the level of access for Special Rapporteurs before. They may wish for more, but they are not responsible for the peace and security of a country and therefore are not the ultimate arbiters of what it takes and what should be avoided to achieve these goals.

The UN has a valuable role to play in many areas and we expect our government to play an active role in it and to contribute to its improvement. However, the Government should not wave a grossly exaggerated notion of the UN as a big-stick to force an ongoing democratic process of enormous significance to our country--that of considering the replacement or amendment of a Constitution-- into a direction that it prefers. It has to do its own hard work of convincing the legislature and the courts of its position or abide by the view of the House as dictated by our Constitution.