{"id":83134,"date":"2023-11-18T18:00:13","date_gmt":"2023-11-18T22:00:13","guid":{"rendered":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=83134"},"modified":"2023-11-19T00:14:14","modified_gmt":"2023-11-19T04:14:14","slug":"83134","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=83134","title":{"rendered":"Supreme Court Ruling must surely make the political establishment, its avaricious panjandrums and the sundry collection of white collar parasites still feeding off Sri Lanka\u2019s rotting carcass, shudder in their well heeled shoes"},"content":{"rendered":"


\nBy<\/p>\n

Kishali Pinto-Jayawardene<\/strong><\/p>\n

A ringing reminder by the Supreme Court this week holding three Rajapaksas (two former Presidents and a Minister of Finance) along with their economic tsars and a politically driven Monetary Board responsible for Sri Lanka\u2019s calamitous bankruptcy, was that \u2018the Rule of Law is not only rights and equality\u2026.(it) is also about functionality and efficiency for (the) sustainable economic development of the nation and all of its people.\u2019<\/p>\n

Politicians and the evils that they do<\/strong><\/p>\n

That awful pronouncement must surely make the political establishment, its avaricious panjandrums and the sundry collection of white collar parasites still feeding off Sri Lanka\u2019s rotting carcass, shudder in their well heeled shoes. The instant decision is, in many respects, an interesting accompaniment to an earlier decision of the Court holding another former President (Maithripala Sirisena), his defence and police chiefs culpable for reckless failure to prevent the 2019 Easter Sunday attacks.<\/p>\n

Indeed the sequence of events relevant to the disasters in point (2019 and 2022) speak to certain commonalities in their happening, Both cumulatively tipped Sri Lanka into an abyss from which there is yet no salvation, if there can ever be. <\/p>\n

In focus were two singularly catastrophic eventualities that called upon the Court to examine extraordinary situations of national distress.<\/p>\n

Both were brought about by a vicious combination of an unquenched thirst for power and raw greed on the part of those once hailed as Sri Lanka\u2019s saviours but whose actions, ironically, led to the \u2018death\u2019 of the nation as we know it. That was combined, we must not forget, with mind numbing personal and professional opportunism by a galaxy of men and women who stood by and said nothing, did nothing and heard nothing as the country died, \u2018not with a bang but with a whimper.\u2019<\/p>\n

<\/p>\n


\nChildren giving lame excuses<\/strong><\/p>\n

In fact, the justifications offered by politicians and their merry men (thankfully there were no women this time around) as to why the blame for Sri Lanka\u2019s bankruptcy should not be laid on their shoulders, count to a considerable number of pages. I am irresistibly reminded of nursery games played by children where one points the finger at the other in order to escape.<\/p>\n

One of the basic questions in issue was as to why early and remedial recourse was not made to the International Monetary Fund (IMF) without trotting out \u2018homegrown\u2019 solutions that existed only in the makers\u2019 imaginations. From (then) Presidents to (then) Governor of the Central Bank to (then) Secretary to the President to (then) Secretary to the Treasury to the Monetary Board, the obscene charade of excuses is merrily recounted.<\/p>\n

In dismissing these explanations, a four member (majority) Bench headed by the Chief Justice stepped out of the routine compass of the rights chapter, reading the Constitution as a \u2018live\u2019 document as it were in enforcing accountability on the part of decision makers. That is spelt out very clearly by the judicial observation that the right to equality (Article 12 of the Constitution) has \u2018evolved with the passage of time.\u2019<\/p>\n

Where the Rule of Law (including \u2018sustainable economic development\u2019) arises, the judges will \u2018provide a margin of deference to relevant decision makers in implementing national economic policies\u2019 but consideration of the \u2018public benefit\u2019 will be uppermost. \u2018Strenuous\u2019 objections put forward by the Attorney General against judicial review of \u2018economic policies\u2019 were not looked upon benignly.<\/p>\n

The State\u2019s argument and its dismissal<\/strong><\/p>\n

Certainly, the two pronged argument put forward for the Attorney General made more sense than a litany of pitifully stumbling excuses advanced by the galaxy of private counsel jostling themselves to represent a former President, the (then) \u2018top rung\u2019 of the state\u2019s financial leadership and the Monetary Board. These two prongs were formulated on well traversed lines.<\/p>\n

Fundamentally, the \u2018formulation of national policy is solely vested with the Central Government along with the \u2018economic policy\u2019 which forms part and parcel of the same. Thus, \u2018mere disagreement with a policy is not a ground on which courts could review economic policy.\u2019 Rather amusingly, the Court was pleaded with to refrain from acting as a \u2018super auditor.\u2019<\/p>\n

The second prong was an unsuccessful attempt to revive \u2018the political question\u2019 doctrine. This draws strength from somewhat discredited thinking which proposes that the Court must hold back in cases where supposedly \u2018apolitical\u2019 decisions are made by the State with \u2018diverse\u2019 considerations in mind. <\/p>\n

Judicial remit, it is argued, is therefore limited to cases which are \u2018mala fide, manifestly unreasonable or based on wholly extraneous and irrelevant grounds.\u2019<\/p>\n

For example, the Attorney General contended that former President Gotabhaya Rajapaksa\u2019s \u2018arbitrary tax reductions\u2019 could be seen as disastrous by some (leading to the huge loss of national revenue) or beneficial by others (as a spur to rejuvenating the national economy). <\/p>\n

Whichever, the reduction or increase of taxes is a matter of policy that is \u2018entirely\u2019 within the purview of Parliament under Article 148 of the Constitution.<\/p>\n

The Doctrine of Public Trust<\/strong><\/p>\n

However, in dismissing these arguments and claiming the power of judicial review over the acts and omissions in issue, the Bench pointed to the fact that \u2018continued inaction and callous disregard\u2019 had been evidenced by the Rajapaksa brothers along with the top tier of monetary and fiscal officials at that time.<\/p>\n

They had failed to take timely remedial measures despite substantive evidence showing the drastic decrease in government revenue. This had breached the \u2018public trust.\u2019<\/p>\n

In effect, this violated the \u2018co-relationship\u2019 between Democracy, the Rule of Law and the \u2018Doctrine of Public Trust\u2019, given that \u2018there is no absolute or unfettered discretion in public law; discretion is conferred on public functionaries in trust for the public\u2026\u2019 Principles of openness, fairness and accountability are mandatory and decision-making should not be shrouded in secrecy.<\/p>\n

These familiar reminders are bitter-sweet. Since their articulation close to three decades ago (Premchandra v Jayawickreme [1994] 2 SriLR 90 at 105), the Court has been remarkably inconsistent in holding to that standard. <\/p>\n

Regardless, it is cause for (restrained) joy that the Court saw fit to emphasise those timeless principles along with Article 27(1) of the Constitution (Directive Principles of State Policy) which inter alia, requires the State to realise \u2018an adequate standard of living\u2019 for citizens \u2018\u2026including adequate food, clothing and housing.\u2019<\/p>\n

The way forward for accountability<\/strong><\/p>\n

Other facets of this decision will be examined in these column spaces in the following week. Interestingly also, the Bench opined that the fundamental rights applications in issue should not be dismissed for failure to file within the constitutionally stipulated one month period after the alleged acts took place. The \u2018continuing nature\u2026\u2019 of the violations was stressed given that to ignore this would \u2018be to ignore any possible violations which may stem from these actions.\u2019<\/p>\n

Moreover, the fact that a Parliamentary Select Committee to look into the country\u2019s bankruptcy had been appointed in January 2023 which was after the petitions in the case had been filed and after leave to proceed had been granted, was held not to preclude judicial review. Compensation had not been asked by the petitioners and consequently was not granted by the Court apart from an order as to nominal costs.<\/p>\n

Presumably this reticence by the petitioners acting in the public interest was because it would be impossible to quantify the enormous sufferings of the people due to the acts and omissions in issue. Even so, the Court\u2019s findings may conceivably pave the way for individual citizens to claim that recompense in later interventions, based on continuing harm.<\/p>\n

It is hoped that such public interest action will ensue.<\/p>\n

Courtesy:Sunday Times<\/em><\/p>\n

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By Kishali Pinto-Jayawardene A ringing reminder by the Supreme Court this week holding three Rajapaksas (two former Presidents and a Minister of Finance) along with their economic tsars and a politically driven Monetary Board responsible for Sri Lanka\u2019s calamitous bankruptcy, was that \u2018the Rule of Law is not only rights and equality\u2026.(it) is also about …<\/p>\n

Continue reading ‘Supreme Court Ruling must surely make the political establishment, its avaricious panjandrums and the sundry collection of white collar parasites still feeding off Sri Lanka\u2019s rotting carcass, shudder in their well heeled shoes’ »<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[12],"tags":[],"_links":{"self":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/83134"}],"collection":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=83134"}],"version-history":[{"count":3,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/83134\/revisions"}],"predecessor-version":[{"id":83138,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/83134\/revisions\/83138"}],"wp:attachment":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=83134"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=83134"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=83134"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}