M Sornarajah

M Sornarajah LLB (Ceylon), LLM (Yale), LLM, PhD, LLD (London) is Emeritus Professor of Law at the National University of Singapore. He was CJ Koh Professor at the Faculty of Law of the National University of Singapore. He was the Tunku Abdul Rahman Professor of International Law at the University of Malaya at Kuala Lumpur. He was Head of the Law School of the University of Tasmania, Australia.

Crisis in Sri Lanka: The Root Cause

837 views
5 mins read

The United Nations High Commissioner for Human Rights in her report on Sri Lanka recognized that for Sri Lanka “the promotion of human rights and the prevention and fight against corruption are mutually reinforcing, that corruption can have serious negative impacts on human rights and the poor and those in marginalized situations, including women and girls.” She demanded the prosecution of the corrupt. The Sri Lankan delegate dismissed this statement as exceeding the mandate of the Human Rights High Commissioner.

The Sri Lankan Ambassador, Mr Chandraprema, suggested presumptuousness of the High Commissioner. The Sri Lankan Minister of Foreign Affairs, Mr Ali Sabry, the lawyer who defended former President Gothabaya Rajapakse against the charges of corruption made against him, stated: “It is observed that the High Commissioner’s report makes extensive reference to “economic crimes”. Apart from the ambiguity of the term, it is a matter of concern that such reference exceeds the mandate of the OHCHR”.The Minister of Justice was pictured sitting by Sabry’s side as Sabry was giving the Council the benefit of his wisdom.

The link between corruption and human rights was not made exclusively in the context of the report on Sri Lanka. Concern over corruption and its impact on human rights had been expressed within the Human Rights Council from 2005. A document of the Human Rights Council in that year stated that the Council was “deeply concerned that the enjoyment of human rights, be they economic, social and cultural or civil and political, is seriously undermined by the phenomenon of corruption”. Since then several documents of the Human Rights Council as well as other UN documents have drawn the link between corruption and human rights. The use of the more embracing term, “economic crimes” includes corruption but also draws in other offences committed by those with public and private power abusing such power in a manner that offends the criminal law.

The concern in the area was with countries like Syria, Somalia and Sudan which had high levels of corruption along with massive violations of human rights. Now, Sri Lanka has joined these ranks. Events in Sri Lanka constitute a microcosm within which the linkage can be easily demonstrated. Successive Presidents from President Kumaranatunge, President Rajapaksa, President Sirisena and President Wickremesinghe (as Prime Minister during the Central Bank scam) have demonstrated the linkage between corruption and the violation of human rights. Their cronies and associates profited from the climate of corruption that these Presidents had created. These persons unfairly enriched themselves by stealing the wealth of the public and creating an unequal society in which many were driven into dire levels of poverty. The resulting inequality in itself is emblematic of the linkage between corruption and human rights violations.

Each of the Presidents demonstrated the need for the linkage to be made. I merely state the cases that constitute the tip of the iceberg of corruption in each Presidential regime and their links with human rights. The corruption became deep-seated after President Kumaranatunge. She was found guilty of corruption in the Water’s Edge Case which involved the eviction of several poor families from an area on which a golf course was to be built.

Corruption became a storm under President Mahinda Rajapaksa. His style of ruling was through patronage and reward, ensuring that his cronies amassed wealth while a part of it reached his family coffers. Mahinda Rajapaksa was alleged to have channelled the tsunami funds collected through charity into private accounts. The defalcation led to several victims of the tsunami being deprived of their right to housing and livelihood. The former Chief Justice, Sarath Silva, apologized for exonerating Rajapaksa from corruption charges, in the Helping Hambantota Case (Mahinda Rajapaksa v Chandra Fernando).

President Kumaranatunge had appointed her one-time crony, Sarath Silva, as Chief Justice by passing Justice Mark Fernando, a legendary judge noted for scholarship and independence- an instance of the subversion of the judiciary in Sri Lanka. An independent judiciary is the cornerstone of the rule of law and the protection of human rights. Kumaranatunge committed a corrupt act that more than establishes the linkage between human rights and corruption by compromising the independence of the judiciary in Sri Lanka. Sarath Silva delivered the judgement in the Sinharasa Case condemning a man to imprisonment without justification and earning international opprobrium. Naked interferences in judicial appointments during later Presidents are well known including the ousting of a Chief Justice who did not comply with the dictates of President Mahinda Rajapaksa. (Interference with the judiciary had commenced earlier with Felix Dias Bandaranaike and JR Jayewardene.)

The two Rajapaksa Presidents have been accused of large-scale nepotism and corruption. Their family was responsible for the expenditure of large chunks of the budget as ministers of the government. The opportunity for corruption was immense. They created opportunities not for themselves alone but for their business cronies of the Viyathmaga. Many of the cronies found their way into Parliament and were rewarded with ministries with attendant perks. They profited from scams like the sugar scam.

As public service employment and transfers became a privilege conferred by members of parliament, each member of parliament had great opportunities for accepting bribes. Corruption became endemic in the culture of Sri Lanka. Public appointments influenced by bribery denied people with merit access to employment. They were denied equal treatment under the law. The link between corruption and violation of human rights in such situations was clear.

In the interim, we had that yahapalana circus of Sirisena and Wickremesinghe. The former used his presidential power to release a convict found guilty of murder. He appointed his relatives to high positions. His son and daughter became prominent in government circles. Wickremasinghe was accused of the Central Bank scam. The man who was the alleged central figure in its sojourns in Singapore. The people were deprived of the public money that was involved in the scam. No one has been held accountable for this crime.

Despite all this chain of corruption, the men sent to Geneva by the Government of Sri Lanka blame the UN Human Rights Commissioner for linking corruption with human rights, when one of the best examples of such a linkage happens to be their country. The UNHRC is not motivated by any malice toward Sri Lanka in seeking to link corruption and human rights. They prescribe what would be welcomed by the people of Sri Lanka – the prosecution of the corrupt and the prevention of the corruption that has continuously afflicted the public life of Sri Lanka. The people of the country face starvation as a result of the economic crimes committed by their politicians.

As an academic who has taught international law all my life, I know that there is a minority of academics who contest the linkage of corruption with human rights on theoretical grounds. The delegation of Sri Lanka was not animated by these theoretical niceties. They were more intent on protecting the corruption of their organ grinders. Every Sri Lankan woman with little money in her bag, searching for cheap food for her starving children, every man who goes to every chemist in the vain search for medicines for his sick mother, every farmer who looks with sadness at his crops wilting without fertiliser knows that the root cause of his or her misery is the corruption initiated and continued by successive presidents. The delegation sent to Geneva was not sent there to defend the corrupt but accept the reasons given by the High Commissioner for Human Rights for the suffering of the people they were to speak for. Instead, they are defending the indefensible, corrupt politicians of Sri Lanka. The public is entitled to ask whether these men are themselves corrupt, obtaining a trip to Geneva and its attendant perks in exchange for defending the corruption of their masters.