Kishali Pinto Jayawardene
How does an All Party Conference (APC) comprising precisely of the same men whose actions have precipitated Sri Lanka into financial, social and regulatory collapse, help the country, one may ask?
Arrogant and incompetent decision-making
The APC’s first sitting this week prompted howls of rude laughter from the citizenry, no less. Grist for cruel social media mills and no more, the exercise illustrated heedless showmanship, the same games being played by the same conmen while the country burns – literally. President Gotabaya Rajapaksa’s apology to former Premier Ranil Wickremesinghe for remarks made by Governor of the Central Bank, Nivard Cabraal attributing the financial crisis to policies of the Sirisena-Wickremesinghe regime (2015-2019) should have been followed by another Presidential apology.
This apology by President Rajapaksa should have been made to the Sri Lankan nation, for appointing Governor Cabraal to head the country’s apex banking regulator in the first instance. And for packing the Monetary Board with the Government’s favourites and yesmen, with the consequence that key institutions were reduced to pathetic puppets of politicians.
These so-called ‘decision-makers’ are collectively responsible in the court of public opinion for the current crisis. Our tragedy has long been, not only arrogant and incompetent political leaders but also legal and financial professionals who follow the political caravan with no trace of integrity.
That apart, there is more to be said. Perhaps, former Premier Wickremesinghe who made the news for (purportedly) locking horns with Finance Minister Basil Rajapaksa at the APC in insisting that the draft of the International Monetary Fund report on Sri Lanka should be presented to Parliament while the Finance Minister hopelessly spluttered in return, may have also contemplated an apology of his own. First and foremost, Wickremesinghe’s mea culpa to Sri Lanka is long overdue, for appointing Arjuna Mahendran as the Governor of the Central Bank in his time.
Clever ripostes and unpalatable truths
Mahendran is arguably the country’s most famous fugitive, absconding for his role in the massive swindle of Central Bank bonds in regard to which the country has seen no justice up to now. This is despite flamboyant sittings of Commissions of Inquiry and numerous criminal investigations going nowhere or resulting in those implicated being released.
Arrogance, incompetence and political slavishness appears to be a characteristic of men appointed to high offices of the state. That characteristic goes beyond party colours. The former Prime Minister and his favourites while in office were no exception, let it be said.
So his clever riposte to the Central Bank Governor at the APC this week that, if blame is to be apportioned, we need to go back to the start of this doomed nation, the arrival of a fleeing prince from India with his entourage and their purported ‘lion-race’ origins, is more of this same savage political showmanship. There is no point talking of ‘Vijaya’ and his arrival to Sri Lanka.
The former Prime Minister must be reminded that the APC is not a school debating match between Royal College and Trinity College. We do not have to go back centuries to understand the causal connection between Sri Lanka’s sorry plight and actions of political leaders during the past several decades.
He is very much part of that collective political responsibility, as much as other Prime Ministers and Presidents. Indeed, the APC may have been better placed if it had commenced with a series of apologies from the sorry collection of Sri Lanka’s ‘bad and the worst’ represented there.
If this is the so-called ‘cream’ of the country’s thinking minds, entrusted to pull the nation out of the financial quicksands in which it is sinking at lightning speed, there appears to be little salvation. While the Parliament flounders in asinine banter between the Government and the Opposition as the nation erupts, the Finance Minister refrains from addressing the House on the serious financial crisis that we face.
Has the APC replaced Parliament?
Meanwhile Sri Lankans have taken to throwing gas canisters at the vehicles of passing government politicians, fighting with each other and the police in queues for gas, petrol, diesel and kerosene. Up to this point, more than four have died in such incidents. Who is responsible for these deaths?
It is none other than the Government which has forsaken the electoral compact that it signed with the ‘Sinhala Buddhist electorate’ in 2019 and 2020. Certainly the economic woes we are experiencing have their origins not only in corrupt leadership but also communal and racist politics.
Politicians who practiced this vile tool to get votes as well as Sri Lankans who applauded surges of racism and communalism at face value, who looked with approval at the fashioning of the majoritarian narrative in the periods of Rajapaksa 1 and Rajapaksa 11 must understand that the ruin of the country now is a direct result. This is a never-ending cycle of using majoritarianism and national security to precipitate the nation into a situation where it is most vulnerable to geo-political or big-power interventions.
In that sense, the fundamental rights petitions taken to the Supreme Court by the Bar Association of Sri Lanka, urging the Court to intervene in ensuring the fulfilment of the electoral compact equitably and in accordance with Article 12 of the Constitution which guarantees equality before the law, are interesting.
Regardless of their chances of constitutional survival, the invocation of the right to life in these petitions asks the Court to go beyond its earlier jurisprudential position articulated decades ago, that the right to life is limited only to a negative right, in other words, a right not to be put to be death except by due and proper process set out in Article 13(4).
Bitter reflections at these times
This states that, “No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law….’ This principle emerged in two noted cases, Sriyani Silva v. Iddamalgoda, (2000) and reiterated in Lama Hewage Lal (Deceased) et al v. Officer-in-Charge, Minor Offences, Seeduwa Police Station et al (2005). The Court found that Article 11 rights of the petitioners were violated when their family members were tortured and killed by state officers while in their custody. This was significant jurisprudential progress at the time given that the Sri Lankan Constitution lacks a specific right to life in its fundamental rights chapter.
The failure to take this jurisprudence forward in later decades and entrench this thinking more firmly in our judge-made law is just one aspect of a general judicial failure to ensure the full and healthy working of the fundamental rights chapter. That is a discussion for another day. But to return to the rights challenges filed by the Bar in the context of the failure of the Government to ensure basic essentials for the citizenry, these petitions urge something more than a merely negative form of the right to life.
This speaks to similar litigation in the public interest in India where advocates have fully utilised the right to life in the Indian Constitution to plead the Court’s intervention in ensuring the quality of life for citizens. It says much for the legal clowns, perchance of socialist or liberal ilk, who have handled the drafting of Sri Lanka’s various Constitutions since independence up to now, that Sri Lankans do not yet have the constitutional right to life explicitly secured in the text.
On the President’s part, his avowal of sincerity in calling for the conference may have been easier to accept if he had followed these same policies of consultation, compromise and consensus (the three pins of a once mocked Ranasinghe Premadasa strategy) in entering upon his Presidency in the first place.
That is a truth that he may perhaps reflect upon in these bitter times.