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Is the election to Presidential office a magic cloak rendering invisible, criminal allegations regarding which a court of law is looking into?


By

Kishali Pinto Jayawardene

Foisting the blame for the catastrophic defeat of the United National Party (UNP)-led alliance at the November 16th polls to elect Sri Lanka’s seventh Executive President, on ‘Sinhala Buddhist nationalism’ and a panicked security mindset consequent to Easter Sunday’s jihadist attacks is a convenient fairy tale. Certainly these were factors enabling the defeat, as stoked to a hysterical level by prejudiced media. But that is only part of the truth.


A calamitous mixture of arrogance and ignorance

Rather, the disastrous seeds to Saturday’s disastrous defeat were sowed by the now ejected Government itself, almost at the outset of its coming into power in 2015. This is important to recognise in all its unpleasant ramifications if mistakes of the past are to be remedied. Decision-making limited to lofty pronouncements in Colombo with no impact on the ground, callous robbing of the public purse via the Central Bank by the UNP leadership coupled with deliberate sabotage of the legal process in respect of major corruption cases during the Rajapaksa Presidency weighed the scales to the negative. Securing of democratic freedoms of expression and the right to know were not enough.

Shot through with a disastrous mixture of arrogance combined with ignorance at many levels, the reform process spluttered because those at the helm resorted to short cuts. Fatal tendencies of the so-called ‘reformists’were immediately apparent. Constitutional drafting was one good example.

Entrusted to mediocre legal minds resulting in a half-baked 19th Amendment, yet another of these constitutional idiocies surfaced this week. Gotabhaya Rajapaksa, elected last Saturday into the coveted office of Sri Lanka’s Executive Presidency was judicially released from criminal prosecutions regarding allegations that he, with six others, had criminally misappropriated state funds of Rs 33.9 million to construct the D A Rajapaksa memorial museum.

This was in reliance on Article 35 (1) of the Constitution which stipulated that ‘while any person holds office as President of the Republic of Sri Lanka, no civil or criminal proceedings shall be instituted or continued against the President in respect of anything done or omittted to be done by the President, either in his official or private capacity.’ Take out the persona of Rajapaksa from this discussion and let us focus on the principle of presidential immunity.

This constitutional Article, in its original form, had been steadfastly critiqued for decades with a strong case being made as to why the President should not be given sweeping immunities.

Privileging of political agendas over the public good

In that background, the least that constitutional reformists should have done in 2015 was to delete the word ‘continued’ in the rewording of Article 35 (1). Yet all that the 19th Amendment added was a singularly lazy proviso permitting fundamental rights actions to be lodged against the President. Of what importance is this compared to criminal proceedings already instituted against an individual who is later elected to the office of the President?

Is the election to Presidential office a magic cloak rendering invisible, criminal allegations regarding which a court of law is looking into?

Resorting to shortcuts driven by political agendas permeated the reform process with only few exceptions. Even in handling the ultra-sensitive question of justice for war victims, there was a cocky assumption that each and every process can be ‘manipulated. Political agendas were privileged over and above the national good. Colombo became the port of call for transitory ‘transitional justice experts,’ wafting from one conflicted nation to another with little substantial expertise and even less understanding of local knowledge.

Before long, the ‘good governance’ label came to be derided and scorned. One Finance Minister was exposed for lying to a Presidential Commission of Inquiry as to how millions of dollars came to be deposited by cronies of bond fame ‘Aloysius’ into the hands of family members.

Meanwhile his successor appeared to be more interested in periodically issuing grandiose statements on democratic principles rather than handling his portfolios efficiently, which was left to thoroughly inept officialdom. In short, only the blind could not see that two years into a directionless rule, a seething, boiling resentment against the Government was building up to a pressure point in vast swathes throughout Sri Lanka, from Sabaragamuwa to the North Central and North Western Provinces, let alone the South.

And so, the Government teetered from one crisis to another, culminating in this year’s April attacks on churches and hotels as hundreds celebrated Easter Sunday. Even then, it was a tale of ‘I do not know’ by the President, Prime Minister and Ministers. That anger was deftly capitalized upon by Rajapaksa loyalists as they regrouped and strengthened themselves with formidable force.

Very early on, ‘yahapalanaya-ists’ had assumed, in a hideous miscalculation, that the Rajapaksas had been washed from the seats of power in a manner akin to regular monsoon rains that periodically afflict the country. Puffed up with glory at having ‘established democracy’, reality checks were unwelcome. Those who strongly cautioned to the contrary, including this columnist, were looked upon as naysayers.

The ‘local’ became ‘the national’

Just before the 2018 defeat of the Government in local government elections resulting in a landslide for the newly minted Sri Lanka Podujana Party (Pohottuwa) led by the Rajapaksas, a woman working in the field in Puttalam told me furiously, ‘even if a scarecrow is put to contest the election against this Government, we will vote for the scarecrow.’ The writing was very much on the wall. Even that comprehensive electoral warning did not suffice. Instead, it was dismissed contemptuously by Colombo’s pundits as a ‘local result’. In November 2019, the Sri Lankan electorate proved that the ‘local’ was very much the ‘national.’

Plagued by in-fighting, the UNP-led alliance resorted to tired battle cries that had resonated in 2014, bringing up Rajapaksa corruption (regarding which the legal process had been stultified) and dead bodies of editors, dissenters and activists (regarding which, prosecutions continued to splutter). The swing of the electorate Rajapaksa-way was therefore quite inevitable.

The only fleeting hope during the pre-polls period was the emergence of a young leadership of the UNP, led by Sajith Premadasa, approved by his party to contest at the very last minute as it were. But before long, the same old tainted faces were seen on Premadasa’s election stage. As observed in these column spaces, this was a fight against all odds as Premadasa had to contend with foes not only in the opposition but also within his own party. Inevitably, he lost.

That loss is not merely his or the millions of hopeful Sri Lankans who voted for him, despite the palpable mistakes of the political alliance that he represented, regarding which Premadasa must also hold responsibility as he was part of that administration.

The loss resonates most for a struggling reform process which will now be imperiled if not discarded, if Rajapaksa rule by two brothers in the seats of the President and the Prime Minister lapses into familiar ways of coercion and attack once power is consolidated in the forthcoming General Elections.

One would like to be proved wrong. Very much so.

Courtesy:Sunday Times