SOFA: US and Lanka's sovereignty
UNF Govt. sections fully support ACSA and SOFA, but who is taking the responsibility? If ACSA was "harmless," why the secrecy?
Political disasters cause as much damage as natural disasters, but in the case of Sri Lanka, paradoxical enough, there appears to be unexpected spin-offs for the good.
On October 26 last year, President Maithripala Sirisena removed Prime Minister Ranil Wickremesinghe and replaced him with his predecessor and political arch rival, Mahinda Rajapaksa. The move was coupled together with another -- the dissolution of Parliament to facilitate a general election -- an exercise which the Supreme Court ruled was unconstitutional. Amidst public vow after vow that he would not restore the Premiership to Wickremesinghe, not even if 225 members in Parliament wanted it, President Sirisena did just that. It ended a dark chapter in Sri Lanka’s democratic history though memories of his blunders remain and are still being talked about in Sri Lanka and the world outside.
Unbeknownst to most Sri Lankans, there was another darker chapter that was in the making during that period. The United States Embassy in Colombo sent to the then Foreign Secretary, Prasad Kariyawasam a five-page document. Dated August 28, 2018, it was a draft Status of Forces Agreement (SOFA) which Washington was keen to sign with Sri Lanka. The SOFA is also being described in flowery language as the Visiting Forces Agreement (VFA). Together with the support of Minister Mangala Samaraweera, Kariyawasam, initiated discussions. The United States, with the help of the duo, was in such a hurry, they did not want to even sign an agreement. The draft said the acceptance of their draft “shall constitute an agreement between the two Governments, which shall enter into force on the date of Ministry’s reply.” That was even without the Ministry of Defence, responsible for the country’s national security, not playing any role. It was kept out. President Sirisena had, however, asked Secretary Kariyawasam to quit. He relinquished office on October 31, 2018. That put the SOFA project on temporary hold.
Samaraweera’s explanation
On Thursday, at a news conference at the Finance Ministry, the straight talking Samaraweera defended the SOFA and the Acquisition and Cross Servicing Agreement (ACSA), which is already signed. He complained that the opposition was campaigning against these “military to military” agreements and declared there was “no danger to the country.” In a move to justify the two deals which he backed, he said, Sri Lanka’s dependence on “exports to the United States” is a major reason besides the employment opportunities that would be lost if we do not accede.
If one were to agree with Minister Samaraweera that he is saying the whole truth and nothing but the truth, why then was the ACSA, already signed on August 4 2017, not tabled in Parliament. Why fear? Why the total secrecy in making it public? His claim that the ACSA is “harmless” and was no different to ones signed earlier is hollow and is not true. It is completely different as explained in these columns many a time. It would not be wrong to say he knows it though he has to now defend his questionable actions.
His penchant now for the military is all the more intriguing. Was it not the same Samaraweera, as Sri Lanka’s Minister of Foreign Affairs, who co-sponsored with the United States a resolution at the UN Human Rights Council (UNHRC)? Was it not to punish the Sri Lankan military personnel and Police for alleged violation of human rights, international human laws and even for alleged war crimes? His own President, Maithripala Sirisena has publicly declared that he was not consulted. Now, it is the same Minister Samaraweera who wants to get the US troops to teach their Sri Lankan counterparts human rights among other matters. That he was heavily pro-American is no secret and this was why President Sirisena urged the shift of his portfolio from Foreign Affairs to Finance.
He is even fortunate to have an American Center in his home ground in Matara. His ministerial colleagues’ envy this. Seated next to him at the news conference was Maheshini Colonne, the Director for West and UN at the Foreign Ministry. She handled the agreements in the Foreign Ministry. She now has a new position – Director General of International Relations at the Finance Ministry. Her former boss, then Foreign Secretary Prasad Kariyawasam, who rushed through the ACSA also a holds a similar position – Advisor on International Affairs to the Speaker of Parliament, Karu Jayasuriya. He is, however, paid by a contractor on behalf of the US Agency for International Development (USAID). On Thursday, Minister Samaraweera claimed even the SOFA was “harmless.” However, not many in the Government share his views.
Addressing his news conference cum breakfast with the media on Wednesday, President Maithripala Sirisena declared, “I am against the proposed SOFA. I have mentioned this in the Cabinet as well.” On Friday, Mahinda Ameraweera, General Secretary of the UPFA, which Sirisena leads, told a news conference, “The (UNF) Government is ready to commit a great betrayal of the country. The ACSA agreement has been signed. It is now preparing to sign SOFA.” According to sources close to the Presidency, those remarks came at the behest of President Sirisena.
Exclusively revealed today in The Sunday Times (Political Commentary) in a box story is the full text of the five-page draft of the Status of Forces Agreement (SOFA). The public can now decide whether the SOFA is “harmless” as Minister Samaraweera proclaims or inimical to the national interests of Sri Lanka. Here are some of the significant highlights:
United States personnel (troops, contractors etc) be accorded the privileges, exemptions and immunities equivalent to those accorded to the administrative and technical staff of the US Embassy. They may enter and leave Sri Lanka with US identification individually or collectively. (Note: This means they could enter Sri Lanka without Passports or Visas)
Sri Lanka shall accept, without a driving test or fee, driving licences or permits issued by the appropriate US authorities to US personnel. US personnel be authorised to wear uniforms whilst performing official duties and carry arms while on duty. Disciplinary control by US Armed Forces authorities over US personnel and, therefore, the Government of the United States to exercise criminal jurisdiction over US personnel whilst in Sri Lanka. (Note: This clearly means Sri Lankan laws do not apply to them.)
US personnel not be liable to pay tax or similar charge assessed within Sri Lanka. The Government of the United States of America and Sri Lanka shall co-operate to take measures to protect US personnel property, equipment, records, and official information in Sri Lanka. (Note: They want the Government to protect their assets free of charge)
Vessels and vehicles operated by or, at the time, exclusively for the US Department of Defence may either, exit and move freely within the territory of Sri Lanka. Such vehicles shall be exempt from payment of overland transit tolls. Vessels and aircraft owned or operated by or, at the time, exclusively for the US Department of Defence shall not be subject to payment of navigation, overflight, terminal or similar charges when in the territory of Sri Lanka. The US shall pay reasonable rates for services requested and received at no less favourable than those paid by the Armed Forces of Sri Lanka. Aircraft and vessels of the US Government shall be free from boarding and inspection. (Note: This is a blatant infringement of the sovereign right of a nation)
The US Department of Defence may contract for any material, supplies, equipment and services (including construction) to be furnished or undertaken and shall not be subject to any local taxes. (Note: Makes clear that construction work would be required in Sri Lanka. What do they propose to construct?)
US contractors will not be liable to pay any tax or similar charges. Property, equipment, supplies, material, technology training, or services in the fulfilment of contracts with the Department of Defence and use shall be exempt from any licence, or other restrictions, customs duties, taxes or any other charges assessed within Sri Lanka. (Note: This again is a blatant infringement of the sovereign right of a nation to impose taxes and ensure their rules are followed)
The Government of Sri Lanka recognises that it may be necessary for the US Armed Forces to use the radio spectrum. The Department of Defence shall be allowed to operate its own telecommunication systems. This shall include the right to utilise such means and services as required to ensure full ability to operate telecommunication systems. Use of the radio spectrum shall be free of cost to the US Government. (Note: This simply means they will have their own radio communications network parallel to those used by the Army, Navy, Police and the Coast Guard)
Waive any claims (other than contractual claims) against each other – and damage or loss shall be resolved by the US Government in accordance with US laws and regulations. (Note: This is also an infringement of Sri Lanka’s sovereignty. Sri Lanka’s laws will not apply to US troops and those associated with them. For the troops and others, it would be just as good as moving around in any part of the United States)
ACSA on a platter
Discussions on SOFA were in limbo for many weeks with Prasad Kariyawasam relinquishing office. However, having bagged the ACSA on a platter, pressure from the US Embassy to have SOFA accepted, continued. That led to the matter being listed for discussion at the third Sri LankaUnited States Partnership Dialogue in Washington DC from May 15 to 17 this year. Foreign Minister Tilak Marapana, who led the Sri Lanka delegation, discussed the draft SOFA.
Minister Marapana was still in Washington DC when President Sirisena returned to Colombo on May 19 after a visit to China where he had a meeting President Xi Jinping. He had also signed a defence pact there. The details of that agreement are not known even to his own cabinet. He telephoned Marapana and said he should not sign the SOFA agreement without any consultation since he was the Minister of Defence. This has stalled the move for the time being but pressure from the United States continues. Sirisena avoided pressure from US Secretary of State Mike Pompeo by planning to be away from Sri Lanka when he was to be here for three and half hours. He was to travel to Cambodia and Laos. This move coupled together with planned protests during his visit compelled the US Embassy to advise Pompeo it was not the best time. With Pompeo calling off his visit, so did President Sirisena.
Foreign Minister Marapana discussed the SOFA with US Secretary of State Mike Pompeo. He was to express Sri Lanka’s concern over some of the provisions. Later, speaking in Parliament, House Leader and Minister Lakshman Kiriella made a statement on May 23 during a debate on an adjournment motion by the Janatha Vimukthi Peramuna (JVP). Kiriella said there were 15 paragraphs in the SOFA. There were two clauses which Minister Marapana sought to change during talks in Washington DC — one was diplomatic immunity for US troops who would be present in Sri Lanka and the other subjecting all their actions to US laws. He said there would be no checking of US vessels, they would receive tax free concessions, they could travel in uniform with their identity cards and they can carry weapons and telecommunications equipment. In other words the UNF Government has agreed to them.
It is relevant to mention that the late Foreign Minister Lakshman Kadirgamar, on a vist to Washington DC, ensured that the subject of ACSA be not listed on the agenda for his talks with senior leaders and officials there. The Sri Lanka Ambassador to the US then was Devinda Subasinghe.
The ACSA also figured at the news conference cum breakfast President Sirisena chaired. He was asked, “You are the President of the SLFP, the UPFA as well as the Head of Government and Cabinet. You said you were against signing of agreement (ACSA) with the United States in 2017. In that case who takes the responsibility?”
Replied President Sirisena: “Regarding responsibility, it is the person who is responsible. There is no question about that. The question is in the new agreements. There are new clauses.”
This is just as good as saying whoever threw the stone is only a stone’s throw away. But who? The answer raises more questions: Is it the former Foreign Secretary Prasad Kariyawasam or former Defence Secretary Engineer Karunasena Hettiarachchi, or both? It has now come to light that the Sinhala version to the Cabinet, though it is the official language, did not contain translations of over fifty annexures that listed almost all the US military establishments. President Sirisena’s Cabinet memorandum dated June 30, 2017 had only a brief nine pages without the list. The English version, however, had 83 pages that included the annexures.
It is now clear that due to delay in translations, it has been sent to Cabinet without the annexures. In fact, as the political commentary of May 26 revealed, “Sometime in 2017, President Sirisena had summoned a meeting to ask why there was a delay in the signing of the ACSA. He (the President) was informed that the comments of heads of the armed forces were still being awaited. He asked that the blame for the delay not be put on the heads of the armed forces. Kariyawasam who was Sri Lanka’s Ambassador to the US walked to the meeting from an anteroom of the Presidential Secretariat. This makes clear President Sirisena was unaware of the contents of the annexures or the seriousness of the issue then. It has slipped through his hand but that does not absolve him of his responsibility.
The President was only told that the draft contained several annexures which were to be studied by commanders of the armed forces. President Sirisena exhorted “Ekeng mata vedak nehe. Vahaama assang karanna lesthi keranna”
or I am not interested in all of that. Make arrangements immediately to sign it.” The per