Supreme Court ruling has opened a window for any Sri Lankan to seek compensation from the Rajapaksas for economic, physical and psychological distress they had been subjected to due to the economic crisis.


Ranga Jayasuriya

Last week, the Supreme Court ruled that the three Rajapaksa brothers and a cabal of officials were responsible for the economic crisis, delivering an unprecedented judgement that could be the precursor to Sri Lanka’s long march for justice.

The Court ruled by the majority judgment that the Rajapaksa brothers and five of their acolytes who were handpicked to the top government positions “had demonstrably contributed to the economic crisis” by their actions, omissions, decisions and conduct.

Alongside the Rajapaksas – President Gotabaya Rajapaksa, then prime minister and Finance Minister Mahinda and Basil Rajapaksa, who succeeded Mahinda as Finance minister- the Court found guilty five close associates who held key government positions by virtue of their loyalty to the family: former Central Bank Governors Ajith Nivard Cabraal and W.D. Lakshman, former Treasury Secretary S.R. Attygalle, the Monetary Board’s former member Samantha Kumarasinghe, and former Finance Ministry Secretary and Presidential Secretary P.B. Jayasundera.

The 120-page judgement highlighted a number of costly ideocracies of Gotabaya Rajapaksa that precipitated the economic crisis, driving millions of families into destitution and doubling the poverty rate in a year.

The Court noted that Gotabaya Rajapaksa’s ‘imprudent” tax revision in 2019 brought about a ‘domino effect’, which resulted in downgrading by rating agencies, depletion of foreign reserves, and loss of access to the international finance market.

The Court also observed: “Additionally, the continued maintenance of an artificial exchange rate and the failure to reverse tax reliefs and seek assistance from the IMF in a timely manner collectively contributed towards the rapid deterioration of the economy. The cumulative effect of the conduct of the respondents, in our view, is what contributed to the ultimate debacle.”

“Gross Official Reserves, which stood at US$ 7,642 million by the end of 2019, had depleted to US$ 155 million by August 2021. The scarcity of foreign exchange with the Government and the Central Bank brought about severe hardships to the people.”

However, unlike the other famous recent court ruling, which found former president Maithripala Sirisena, then IGP and the Defence Secretary, among others, guilty of the negligence that led to the Easter Sunday attack and ordered compensation to the victims, last week’s Supreme Court judgement did not impose financial penalties on the accused. The petitioners had not requested compensation, the Court observed.

The court ruling is a landmark, for it held the highest elected office accountable. Yet without follow-up legal and administrative measures to seek punitive action against the accused, it is nothing more than symbolic.

Opposition leader Sajith Premadasa, TNA MP MA Sumanthiran, many opposition Parliamentarians and a number of civil society groups have demanded legal action to recover funds and revoke the civic rights of the offenders.

The process is clear, but the political will is conspicuously lacking in the current blatantly transactional political arrangement, where Ranil Wickremesinghe rules at the mercy of the Rajapaksas.

Justice Minister Wijedasa Rajapaksa told reporters that pursuant to the court ruling, the President should appoint a Presidential Commission of Inquiry. Any punitive measures recommended by the Presidential Commission should then be passed by a two-thirds majority in Parliament.

Given the current composition of Parliament, which is populated by the representatives of the rejected old regime, that is a tall order.

Thus, Sri Lanka’s quest to hold the kleptocratic old regime leaders accountable may have to wait till the next election.

Yet, the Supreme Court ruling has opened a window for any Sri Lankan to seek compensation from the Rajapaksas for economic, physical and psychological distress they had been subjected to due to the economic crisis.

In the ideal conditions, the Rajapaksas and their rent-seeking acolytes should be sentenced to lengthy prison terms. That would provide a semblance of justice to 22 million Sri Lankans.

On the other hand, the absence of legal actions would suggest that the climate of impunity that the Rajapaksa enjoyed has not ended, even after the family was ousted. That may haunt Sri Lanka as it negotiates to restructure sovereign debt and defends itself at the UN Human Rights Council, which has expanded its scope into economic crimes.

Let them eat cake.

The same week, Mahinda Rajapaksa celebrated his 78th birthday, reverting to his familiar pious self, indulging in alms-givings in sacred Dalada Maligawa and his home turf of Abayaramaya- all the while millions of Sri Lankans who were made destitute by his kleptocratic familial reign are struggling to make ends meet. He was seen cutting the birthday cake on social media, with President Ranil Wickremesinghe looking on.

He told reporters he respected the court ruling, but more ambitious Basil was rather tongue in cheek. For the Rajapaksas, who were the law unto themselves when in power, the rule of law is still an object of sarcasm.

Presidential scion Namal is even more forthcoming; challenging the legal premise of the court ruling, he quipped that future governments would be at fault irrespective of whether they increase or decrease tax, implying that the Court had encroached on the government’s remit
That is a gross mischaracterizing of the court ruling. The Court observed: ‘Public trust reposed on them ( holders of public office and bureaucrats) demands resolving issues. Any conduct which is manifestly unreasonable, arbitrary or irrational that would lead to further aggravation of issues which are detrimental to the public, tantamount to a breach of the trust bestowed on them.”

It is not the government’s right to levy taxes that was challenged before the Court, but a series of arbitrary, irrational decisions taken by the holders of political office and connivance of the bureaucratic acolytes without taking into account their immense negative consequences and the egoistic refusal to reverse these idiotic decisions, even after their repercussions were evident.

Also importantly, Gotabaya Rajapaksa’s massive tax relief was granted at the behest of local wheeler dealers who bankrolled his election campaign. That is high-level corruption at the highest office.

Namal has also erroneously noted that all 225 members in Parliament had voted in favour of the tax revision- they did not. (The opposition SJB has recorded its opposition to the bill). Any effort to suggest a series of disastrous economic decisions of the Gotabaya Rajapaksa as collective decisions by Parliament is bunkum.

For the most of the Rajapaksa regime, Parliament and Cabinet were mere rubber stamps, while the brothers ruled the roost and looted the country.

The Rajapaksas are Sri Lankan equivalent of Ceaușescu. Soon after the Iron Curtain unravelled, the Romanian public stormed his palace; he met his maker. Today, Romania is a thriving EU democracy.

If Sri Lanka is to move forward, the demons of the past should be locked up to make sure their apparitions would not defile the future. The Supreme Court judgment offers a way forward.

If the government refuses to follow up, people may decide to do it on their own. Ranil Wickremesinghe surely does not need to provoke another Aragalaya by trying to save the skin of fallen Rajapaksas.

Courtesy:Daily Mirror