UN Special Rapporteur breaches Code of Conduct

Dr Kamal Wickremasinghe

As discussed in the editorial of this newspaper on January 3, the comments of the ‘UN Special Rapporteur’ on the independence of judges and lawyers’, a lady by the name of Gabriela Knaul, are based on partisan information she has received from the (foreign) Government Organised Non-Governmental Organisation (GONGO) minders of the chief justice (CJ).

Based on this information, Ms Knaul has intervened in Sri Lanka’s domestic affairs for the second time within a month by expressing “serious concern” about the impeachment proceedings.

There are several incredible, unproven, and unprovable, accusations in her media statement: without the support of statistics, she has concluded that attacks and threats against members of the judiciary and lawyers, as well as interference in their work, have “dramatically increased” over the past few months. She also charges that impeaching the CJ “appears to be” for asserting independence. She goes on to add that the procedure for the removal of the CJ is extremely “politicised” and lacks transparency, due process and fair trial.

Anyone objectively looking at the facts and circumstances surrounding the CJ’s impeachment case and its management is bound to easily see that all the above assertions and accusations are ridiculously wrong; There is absolutely no evidence to support her accusations other than her GONGO informants’ whispers that the CJ is suffering “for asserting independence”.

There is a perfectly clear, publicly available list of alleged commercial, financial and other impropriety which the CJ has chosen not to answer. It was her GONGO-led minders who took the case to the political arena as their singular strategy of her defence. The politicisation of the case cannot be blamed on others.

Therefore the baseless charges of Gabriela Knaul against the government on the impeachment issue should be cast aside as rubbish.

However, the general context of Knaul’s forceful attempt to create a human rights issue out of the impeachment case cannot be ignored simply as grandstanding by a career minded UN volunteer holding a peripheral post: she is part of the infrastructure the US and European countries superimposed on the UN system to take control of the developing world using their version of human rights as the major tool.

The UN mandate holders and their mechanisms

The network of Special Rapporteurs(a French word meaning ‘reporter’), Special Representative of the Secretary-General and Independent Experts is part of the international system the Americans created in the last three decades or so, to haul the ‘recalcitrant’ nations over the coal under bogus charges of human rights violations; GONGOs are the other indispensable component of this infrastructure.

This special group of individuals is collectively referred to in UN language as “mandate-holders”. They do not receive any financial compensation by the UN for their work, but receive personnel and logistical support from the Office of the United Nations High Commissioner for Human Rights (OHCHR).

The special rapporteur job is nothing but a glorified ‘internship’ opportunity for those with right UN contacts to build a lucrative future career as a ‘human rights professional’.A mandate-holder’s tenure is limited to two terms of three years, and Knaul seems to have just started her second term.

The mandate holder network comes within the scope of “Special Procedures” mechanisms of the UN, established by the western governments at the Human Rights Council (HRC), purportedly to address either ‘specific country situations’ or ‘thematic issues’ relating to human rights in all parts of the world.

The two procedures that form the SP mechanisms, “1235” and “1503”, each named after the Economic and Social Council resolution establishing them, entail public discussion and confidential proceedings respectively, of alleged human rights violations by countries.

In essence, the “mechanisms” provide a formal avenue for individuals (agents) and GONGOs in developing countries to clandestinely lodge complaints of ‘human rights abuses’ against national governments, to allow the granting of UN ‘mandates’ to special rapporteurs, independent experts or working groups to look at a particular country or a thematic issue. Knaul is currently trying to act on such ‘complaints’ from the Hong Kong based GONGO activist, Basil Fernando.

From its dubious, Western-sponsored beginnings the special procedures mechanisms have evolved into a monstrous tool used to haul sovereign developing country governments over the coal on flimsy charges of ‘human rights violations’. Currently, there are 36 thematic and 12 country specific mandates. Not surprisingly, the list of countries with mandate holders appointed to conduct inquisitions against them is the same as those resisting Western dictates: Iran, Belarus, Somalia, North Korea and Myanmar are just a few.

An example of the self-serving and non-productive nature of the ‘work’ of the 37 mandate holders was the “joint statement on the importance of human rights in the fight against poverty”, issued collectively by them to mark the Human Rights Day in 2006: they seem to think that the lack of the Western version of human rights, the right to protest against democratically elected governments, is the prime cause of poverty in the world!

Due to developing country protests over the methods used by special rapporteurs, especially their alliances with anti-government elements in the countries they focus on, the HRC attempted to clip their wings in 1997 by adopting a Code of Conduct for special procedures mandate holders, and disallowed them to address the media. Article 3(f) of the Code orders that mandate holders, “Neither seek nor accept instructions from any government, individual, governmental or non-governmental organisation or pressure group whatsoever.”

Knaul insults the Sri Lankan Constitution

The disturbing aspect of Knaul’s media releases is that she appears to, knowingly or unknowingly, entangle herself in a number of issues that far exceed her mandate. She is also in clear breach of the Code of Conduct by relying on biased information and instructions from GONGOs.

The implied threat in Ms Knaul’s statement that “I would like to reiterate that article 107 of the Sri Lankan Constitution, read together with Standing Orders of Parliament, is contrary to international human rights law”is highly offensive to Sri Lanka as a sovereign and equal member of the UN; Knaul’s remark suggests that, as far as she is concerned, Sri Lanka can ‘shove’ its Constitution and they should do things according to what she calls the “international human rights law”.

Her observation and the implied threat are irrelevant because the CJ’s impeachment case does not even remotely resemble a human rights issue: it relates to the conduct of the bearer of one of the highest offices in the democratic governance structure of Sri Lanka. Pushing such a ‘behavioural’ or disciplinary issue including the parliamentary process in to the arena of human rights is a ludicrous and cynical exercise on the part of Knaul.

Apart from the fact that the impeachment case does not involve human rights issues, Knaul needs to understand that the so-called international human rights law is an airy-fairy concept that has barely taken root beyond Western capitals and her office in Geneva. Her attempt to bring Sri Lanka under some sort of universal jurisdiction by casting aspersions over the country’s Constitution deserves contempt.

In Sri Lanka, Constitution reigns supreme

As to any real or imaginary conflict between Sri Lanka’s Constitution and the international law Knaul wishes to impose, the Sri Lankan Constitution holds sway: the situation is not different to America where the Supremacy Clause of the US Constitution declares them to be supreme law of the land.

As recently as 2009, the US Supreme Court Justice Sonia Sotomayor explicitly stated during Senate confirmation hearings that “American law does not permit the use of foreign law or international law to interpret the Constitution and that there is no debate on that question.”Also, Florida Representative Sandy Adams introduced a bill to forbid the US Supreme Court from ever citing or using any precedent from international law. During her tabling of the Bill, Ms Adams said, “The Constitution laid the foundation for our nation’s judicial system, and allowing foreign law to supersede it in any capacity leads to its erosion. Not only is using international precedent a transparent disregard for the Constitution, but it could be used to advance a judge’s personal political agenda over the best interests of the nation.” Sri Lanka chooses to adopt the same stance.

While Sri Lanka may choose to respect the basic legal architecture of human rights promotion and protection under the UN Charter and the network of treaties subsequently ratified, Knaul should not expect Sri Lanka to take seriously her observations on any conflict some unspecified ‘international law’ may have with the country’s Constitution.

According to her resume, Knaul has worked as a judge in Brazil and is an expert in criminal justice and the administration of judicial systems: it may well be she is unfamiliar with constitutional jurisprudence, or she could be applying a different standard to Sri Lanka.

Sri Lankans can well remember that several international enterprises sought to unduly intervene in the crucial domestic battle against terrorism, under the guise of protecting human rights that went against the definition of sovereignty and the basic principles of Article 2 of the UN Charter that emphasises the importance of respect for sovereignty and the principle of non-intervention.

Knaul seems to be indiscreetly swallowing all the material sent to her by politically desperate anti-government elements and Sri Lankan GONGOS: she needs to urgently revisit the OHCHR guidelines on admissibility of communications related to a violation of human rights including the requirements that they should not have manifestly political motivations and should contain factual description of the rights which are alleged to be violated.

Our message to Knaul is that, the CJ’s impeachment does not involve human rights issues and if it did, the enforcement of international human rights law is a matter solely within the domestic jurisdiction of Sri Lanka. As an unpaid UN mandate holder, she needs to find some other ‘project’ to keep busy and to prove investigative credentials.