Sri Lanka's Sugar buddies

President Sirisena or Prime Minister Wickremesinghe, or for that matter former President Mahinda Rajapaksa, cannot so easily exonerate themselves from their general record of protecting bribe takers and corruption beneficiaries, and allegations of their own implications in some of them.

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by Rajan Philips

( May 6, 2018, Colombo, Sri Lanka Guardian) For starters today, I was planning this secular prayer: Let us first say thanks for small mercies – for keeping Ravi Karunanayake out of the cabinet in last Tuesday’s reshuffle. Two days later the thunderbolt struck –the President’s Chief of Staff and the Timber Corporation Chairman caught counting bribe cash in the carpark at Taj Samudra. How brazen has corruption become? We knew it had already climbed high. But thanks again for small mercies – to the Bribery Commission officials who arrested the two government thieves. The Bribery Commission is having better luck with real time culprits than it has been having with rogues of the past. I will spare the details of the arrests and the arrestees which are already virally known, and turn to their inauspicious effects on the new session of parliament that is scheduled to open on Tuesday, May 8.

Already, the presidential secretariat has exhibited its ineptitude in taking three trial and error gazette notifications to properly announce the May 8 opening. Now, President Sirisena will have to acknowledge and address the embarrassment of the mid-afternoon bribery scandal involving his Chief of Staff I.M.H. Mahanama and the Chairman of the Timber Corporation P. Dissanayake. The President has already exonerated himself by interdicting the culprits and claiming that the arrests of the two men prove that his administration is being effective in the fight against corruption. What it really proves is that things will work if the law enforcement officials are given the freedom to do their job without political interference.

President Sirisena or Prime Minister Wickremesinghe, or for that matter former President Mahinda Rajapaksa, cannot so easily exonerate themselves from their general record of protecting bribe takers and corruption beneficiaries, and allegations of their own implications in some of them. What will the President say, if anything, on the matter of bringing state criminals to book? Apart from state corruption, will there be answers to state murders of intrepid journalists and a young sports star? Will anything happen before the President’s elected term is over?

The people who thought there would be changes after 2015 are now fed up and are resigned to the old curse to let ‘there be a plague’ on not just two but, now, all three houses. The SLPP cannot absolve itself because it has a new abbreviation. Name change is not rebirth. Its contents are all old stock. The people are more concerned about their livelihood woes. There is no economic commentary going around that is positive or rosy, even without the unsolicited opinions of the former Central Bank Governor. With his past locked in a glass house, Nivad Cabraal, should stop throwing stones at the current regime. As for the economists with professional credibility, what they are figuring out in their heads the people are doubly feeling in their guts.

The economic woes

Sri Lanka’s economy like most national economies can keep growing at what Nimal Sanderatne calls its ‘autonomous growth’ rate, regardless of what governments might do to spur or stall growth. But when things go wrong, it is the government that gets the blame, and rightly so as is the case almost always in Sri Lanka. The current mainstays of Sri Lanka’s economy - are tourism, exports led garment and tea and sprinkling of manufacturing and agricultural products, agriculture with a high proportion of rice production, and remittances from Sri Lankan workers overseas (90% from the Middle East). Its chronic problem is the external balance of payments – trying to keep as much foreign reserves as possible to pay for essential imports, and often measured by the number of months of import capacity. Encompassing everything is the national debt which, as Mr. Cabraal has been crowing last week, has grown to historical highs. This is a pointless argument. Hardly any government has been able to reverse the debt trend, so every year the country invariably makes history with its national debt.

The debt and deficits are also functions of our structural inability to raise revenue levels or reduce non-discretionary expenditures (e.g. public sector salaries). After about 60 years when income tax was first introduced, only 7% of the labour force and companies reportedly pay income tax. And the yahapalanya government with the gusto of a drunken sailor increased public sector salaries in its first budget in 2015. Few public servants remember that now, because those are less than crumbs compared to what politicians and officials routinely make in bond auctions or car park cash transactions.

At the household level, the pinch comes from the shortage, or the rising cost, or both, of the imported essentials. Aggregate it nationally, shortages and cost of living have been perennial political predicaments. For the first 35 years after independence the contentious commodity was imported rice closely bundled with wheat flour and sugar. Over the second 35 years, rice has been replaced by fuel. Such was the significance of rice in 1970, that a figurative opposition promise, "we will bring rice even from the moon" became an election winning slogan. Rice eventually came and in substantial quantities, not from the moon but from the island’s paddy fields in the wet zone and in the dry zone.

No one is bold, or mad, enough now to promise to bring fuel from the moon, and there is no hope for producing petroleum locally. The government is in a bind to buy fuel globally at rising prices and enable its supply locally at cost that is affordable to ordinary people. It will be political suicide if the government were to simply let the market prices determine the cost of local fuel supply. Equally, it will be economic distortion to subsidize the supply cost of fuel, as it used to be done with rice. The financial impacts will be significant and the government will be flouting one of the key conditions of the IMF’s Extended Fund Facility to Sri Lanka. Commentators like Nimal Sanderatne have suggested a politically sensitive and economically responsible way out – that is to locally cushion the impact of rising global oil prices but cut funding elsewhere to make up the deficit, in the more discretionary areas of government spending, such as perks and pensions to parliamentarians and other government extravaganzas. It will be a remarkable shift if the government were to make such a course change from past practices.

While the present government is drawing much flak, but not unjustifiably, for its handling of the economy, things were not very different when the Rajapaksas were in power. In fact, it was often said that more than astrology it was former President Mahinda Rajapaksa’s fear that the economy would change for the worse that prompted him to call an early presidential election in January 2015. As blunders go, there are enough similarities between the two governments before and after January 2015. As far as the mainstays of the economy go, neither government did anything spectacular to boost tourism, exports or agriculture, apart from the 2016 restoration of EU concessions for Sri Lankan exports. According the annual World Bank overview, Sri Lanka continues to attract subpar volumes of the coveted FDI compared to peer economies. More importantly, the same report, suggests that the recent FDI inflow is "due mainly to the long-leasing of a port asset and a large land reclamation project", which are the leasing of the port operations and port lands in Hambantota, and the Port City development in Colombo. This is only another version of what the Rajapaksas did with Chinese loans for infrastructure development.

The (UNP) government has little to show for its economic strategies over the last three years, which were centred on the promise of a million jobs based on a knowledge-based social market economy, Western Region Megapolis, free trade with anyone who wanted to talk trade with Sri Lanka, and opening industrial clusters throughout the country. What the government has been shown in return is the wrath of the people in the neglected agricultural sector, and mostly rice producers, who were left literally high and through two full paddy seasons of extreme drought. Prime Minister Wickremesinghe acknowledged that the neglect of the country’s agricultural population was a major factor in the UNP’s crushing defeat in the February local government elections. It will be interesting to see if the President’s Policy Statement to parliament on Tuesday will signal anything new that we haven’t seen so far. Or, will it be the same old, same old? The debate that will follow could be expected to offer clues about the positions the main political parties will be taking on the economy, the upcoming elections and constitutional changes.

The countdown

The new sessions will also be the start of the countdown for the final phases of the political careers of not only President Sirisena and Prime Minister Wickremesinghe, but also former President Mahinda Rajapaksa. They are the three crucial political figures and rivals of today. They are also at the tail end of their political careers. All three of them have choices to make. Two of them, Sirisena and Wickremesinghe, may want to contest the next presidential election, which in theory one of them could win, but in reality both of them may lose. All three of them, on the other hand, have another common choice before them – and that is to put an end to all future presidential elections by supporting the JVP’s proposed 20th Amendment to abolish the executive presidential system in its current form. They will still have one more kick at the can – to contest the next parliamentary election as the prime ministerial candidates for their respective parties.

No matter how and where it will end, the JVP’s 20th Amendment proposal has become a cat among the pigeons in the main political parties. To date, the UNP and the SLFP including President Sirisena and Prime Minister Wickremesinghe have not said anything about the JVP’s proposal. The newly minted UNP Secretary Akila Viraj Kariyawasam has let it be known that Ranil Wickremesinghe will contest the next presidential election as the UNP candidate and will win. The SLFP’s group of 16 were once the chief promoters of a second Sirisena candidacy for President, but it is not clear where they stand now given their self-selected no man’s land between the Sirisena and Rajapaksa loyalists. However, the SLFP Secretary Duminda Dissanayake has, like his UNP counterpart, announced that President Sirisena will be contesting for a second term as the SLFP candidate.

But both the UNP and the SLFP leaders will have a time explaining to their 2015 allies and the general public why they are going back on their earlier promises to abolish the executive presidency, and presenting themselves as two opposing presidential candidates. Already about 40 civil society organizations have expressed support to the JVP’s proposal. The greater onus to explain will be on Maithripala Sirisena who vowed to be only a one-term President. They may have quietly ignored their promises and filed nominations as candidates, but the JVP’s proposal has set a political trap in their tracks. They will have a great deal of explaining to do if they choose not to support the JVP’s 20th Amendment.

The TNA also has indicated support for the 20th Amendment provided its concerns on the ethnic problem are addressed in the amendment package. That will leave Ranil Wickremesinghe in a particularly awkward spot insofar as the Tamil votes are concerned. If the TNA supports the JVP amendment and the UNP opposes it and defeats the amendment, Mr. Wickremesinghewill have a hard time canvassing the Tamil vote. He may even suffer a second Tamil boycott, but a totally voluntary one unlike in 2005.

The Rajapaksas and the SLPP have their own set of calculations in coming to terms with the JVP’s proposal. The No Confidence Motion against the Prime Minister has already exposed the lines of division in the Rajapaksa camp. Those who were gung ho about the NCM are the promoters of Gotabhaya Rajapaksa for presidency. Basil Rajapaksa didn’t think much of the NCM idea; he was more for forcing the dissolution of parliament to be followed by a general election. Mahinda Rajapaksa would lead the SLPP to victory and become Prime Minister. There could even be an outside chance of a different 20th Amendment to rescind 19A and restore 18A. Then Mahinda Rajapaksa could be President again. Even Mohan Peiris and Nivard Cabraal could return and together with Gotabhaya Rajapaksa, again helping his brother as the quintessential doer functionary, they could restore the old Tuesday-Tea triumvirate meeting to mull over state business.

But Basil Rajapakasa is too sharp a person to miss out on reality through day dreaming:it is best for the SLPP to focus on early dissolution and a parliamentary election. The defeat of the NCM also took the air out of the Gotabhaya balloon. Then came, the JVP’s proposal and the SLPP leadership decided to test the political winds by letting MP and former Minister) Bandula Gunawardaneannounce that the SLPP would support JVP’s amendment if it included the provision for immediate dissolution of parliament. That would solve two problems for the family and the SLPP. ‘Abolishing’ the executive presidency would mean that the family doesn’t have to split over choosing a presidential candidate. And with dissolution and new parliamentary election, Mahinda Rajapaksa could return to power as Prime Minister and Head of Government.

There are layers and layers of political pushes and pulls, including admonitions from the Sangha, not to mention personal agendas and priorities, which Sirisena, Rajapaksa and Wickremesinghe will have to deal with while deciding what to do about the JVP’s 20th Amendment. One certainty that we can assure the three rivals is that if they decide to support the 20th amendment and facilitate its successful passage, in parliament and in a national referendum, they will leave behind a very positive political legacy that they, their allies and progenies can for ever be proud of. Conversely, they should convince themselves that they are indeed proud of opposing the 20th Amendment before opting to oppose it.

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A historic defection and a political thunderbolt

| by Rajan Philips

( November 23, 2014, Colombo, Sri Lanka Guardian) The defection of Mr. Maithripala Sirisena, the Minister of Health and the SLFP General Secretary, from the Rajapaksa government is historic and momentous on several counts. As a political party, the SLFP is not unaccustomed to defections. The founding of the party itself was the result of the defection of SWRD Bandaranaike, himself a Minister of Health and Local Government, from the first UNP government after independence. But his defection was a personal statement of political frustrations as well as aspirations that had no immediate impact on the (DS Senanayake) government of the day. In the election that followed in 1952, the newly formed SLFP did not fare well at all while the UNP romped to a landslide victory. Mr. Sirisena’s defection, on the other hand, is a political thunderbolt that has the potential to become the grave digger of the Executive Presidency. He has given Sri Lanka the chance to avoid being spirited away on a 99 year lease by the Rajapaksa brotherhood.

The SLFP’s fortunes and numbers swelled in 1953 when it became the beneficiary of defections from the LSSP led by TB Subasinghe, PH William Silva and Lakshman Rajapaksa, all of whom went on to become frontline Ministers in future Bandaranaike-led SLFP governments. These defections and crossovers were the result of open debates and democratic disagreements about political goals and paths, unlike the opportunistic UNP squatters in the UPFA cabinet who have been simultaneously enjoying their (UPFA) government ministership and their UNP membership thanks to President Mahinda Rajapaksa’s executive inducements and ex-CJ Sarath Silva’s cooked court rulings. Maithripala Sirisena’s defection has created the opportunity to put an end to this nonsense once and for all. It is the SLFP that is now on the verge of a split, triggered by the prematurely called presidential election for an illegitimately constitutional third term in office.

The impending SLFP split is also different from the third major defection in the history of the SLFP. That was the defection of 14 SLFP Ministers and MPs led by CP de Silva in 1964 to cause the parliamentary defeat of the short-lived SLFP-LSSP coalition. The 1965 election that followed benefited the UNP with Dudley Senanayake as Prime Minister, although Mr. Senanayake did offer the premiership to CP de Silva who declined the offer. In the present instance, with the UNP leader Ranil Wickremesinghe gallantly standing down, the chief SLFP defector Maithripala Sirisena has instantly become the common candidate thunderbolt. He has the blessings of Chandrika Kumaratunga (nee Bandaranaike), the first SLFPer to become President under the Jayewardene constitution and who is now the spiritual matriarch of the SLFP revolt against the pretenders to the ownership of the SLFP. The political stakes now are also more fundamental and much graver than they were in 1964. And the Old Left in the UPFA is now in a pickle having prematurely thrown its support behind the incumbent president and now caught unawares by the Sirisena bolt from the old SLFP blue. It was rather saddening to see someone like Dr. Tissa Vitarana being part of the triumvirate, in the distinguished company of Wimal Weerawansa, doing the media errand for the government.

While the pundits now say that they knew all along this was coming, nothing should be taken away from those who pulled this off. The defection of Mr. Sirisena and his acclamation as the opposition common candidate is a stunning development considering the kerfuffle over common candidacy that has been going on for weeks with the government doing everything to stir up confusion among the opposition forces. Special kudos must go to former President Chandrika Kumaratunga and UNP Leader Ranil Wickremesinghe. They have individually and collectively contributed much of the political mess that the country is in, but their contributions to making Maithripala Sirisena the Common Candidate against President Rajapaksa will be huge credit entries on their political balance sheets. It would be easy to make fun of Ranil Wickremasinghe for getting cold feet for the second time to be a presidential candidate against Mahinda Rajapaksa. But in this instance, Mr. Wickremasinghe has shown exceptional equanimity in endorsing Maithripala Sirisena as the opposition’s Common Candidate. One would hope that he will remain a vigorous force throughout the campaign and mobilize the party machinery and its base in support of the common candidate he has endorsed.

Whatever opinions one might have about Chandrika Kumaratunga’s performance as a President, nobody can deny that she was the political fighter who upended the UNP government after it had been in office for seventeen years. Another twenty years later, history is giving Chandrika Kumaratunga another chance to play a vicarious role in terminating a regime that behaves as if it is interminable. Only a few weeks ago a Rajapaksa loyalist with Leftist pretensions shamelessly wrote that that the SLFP is as much a party of the Rajapaksas as it was of the Bandaranaikes. With Maithripala Sirisena leading the new SLFP breakaway and playing the role of the mythical saviour of the people, the SLFP finally has the chance to shed its tag as Sri Lanka’s family party. And there cannot be a better midwife to this new transition than Chandrika Kumaratunga.

It is still early days and the candidates are still to go through the nomination formalities. There is a long way to go before the election that has been fixed for January 8, and nothing can be taken for granted. The country will see the good, the bad and the ugly before it is through with the election. Even if the opposition campaign stays good all through, there will be plenty of the bad and the ugly from the government side. The decadent regime will spare nothing to prevail in the January election. There is too much at stake for those in power to lose power. Organized violence, intimidation of opposition groups, abuse of state power, the igniting of chauvinistic hatred and a great deal more will be unleashed from the war room of the state sponsored election campaign of the Rajapaksas.

As against the might of the state, the opposition forces have a just and moral purpose. They now have the enthusiasm following the dramatic defections last week. In Maithripala Sirisena, the opposition has a more seasoned political player than what it had in Sarath Fonseka in 2010. Mr. Sirisena also has the organizational advantage, having been a long time Secretary of the SLFP, as well as the territorial advantage of an established political base in the Rajarata. He could certainly benefit from being not only the Common Candidate of the opposition but also its Only candidate. The other opposition parties and groups, especially the JVP and the TNA, must realize the seriousness of the stakes involved and avoid fielding their own candidates for the sake of contesting, or causing political digressions that the Rajapaksas will be all ready to exploit. Let it be a two way race and let the people decide.

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Modi resets the clock to 13A

| by Rajan Philips

( June 1, 2014, Colombo, Sri Lanka Guardian) If there was disappointment in Sri Lankan Tamil political circles after Narendra Modi’s majority victory in the Lok Sabha elections, there must have been disappointment in government circles after Modi’s swearing in and his brief meeting with President Rajapaksa, when Prime Minister Modi reset the Indo-Lanka clock back to 13A. However, after returning to Colombo, President Rajapaksa seems to have directed senior (SLFP) Minister Nimal Siripala de Silva to let it be known that only the proverbial Parliamentary Select Committee could decide on the future of the Thirteenth Amendment. While the new Indian Prime Minister suggested to President Rajapaksa that an early and full implementation of the Thirteenth Amendment and even going beyond it will facilitate the national reconciliation process, Minister de Silva has reminded the media in Colombo that "the government would co-operate always with India, but no one should interfere in the internal affairs of the country." Why did not the President himself straighten Prime Minister Modi on the matter while the latter is still new to the file on Sri Lanka?

Rather than having his Minister offer a history lesson in Colombo, President Rajapaksa could have told the new BJP Prime Minister that the Thirteenth Amendment was forced on a weak Sri Lankan President (J.R. Jayewardene, a mostly secular urban elite) by the wretched Congress Party of India, and that it is now up to the two of them, as Asia’s new strongmen doers (I am paraphrasing Basil Rajapaksa’s comparative exhilaration), to throw 13A into the same dustbin where the Congress has been dumped, and rewrite a new relationship between Modi’s India and Mahinda’s Lanka. The same way, the Chinese are expecting Modi to rewrite Sino-Indian relationship now that the moribund Congress is finally out of the way. While at it, they could also put Tamil Nadu in its place and in its corner. Why not?

Here is why. President Rajapksa’s style of governing is saying different things to different people, and letting his Ministers say even more different things to even more different people. May be the ministerial musings in Colombo were intended not for Indian ears but the UPFA government’s small sidekicks like the NFF, the JHU, and now even the MEP, who are getting hot under the collar and are hollering out multi-point demands directly at the self-beleaguered President. Modi could ignore Tamil Nadu’s misplaced protests and invite Rajapaksa to Delhi for a new beginning, but President Rajapaksa is too ensnared in his own little alliances to tell them minions where to buzz off - i.e., political wilderness without SLFP support. If the Modi mantra is maximum governance with minimum government, the Rajapaksa style is minimum governance with maximum government plus, plus.

Prime Minister Modi’s resetting the clock to 13A sends a message not only to the Rajapaksa government, but also to those in Tamil politics who cannot give up on their matinee dreaming and have been investing their dreams on a Tamil Nadu government contesting just 39 out of 543 Lok Sabha seats in India to somehow roughhew the Sri Lankan political landscape. They too can wake up from their matinee madness and smell the evening tea, just as the Sri Lankan government must realize that it cannot engage Delhi without talking 13A. Minister Nimal Siripala de Silva has been in politics long enough to know that after 1983, the internal and the external in Sri Lanka have become inextricable. If anyone is interfering in Sri Lanka’s internal affairs, it is because the Sri Lankan government has externalized its internal affairs. It will not be nice for India to say it, but any Sri Lankan politician with a head on his shoulders must know that India does not need Sri Lanka’s co-operation on anything but it is Sri Lanka who needs India’s co-operation to address its own internal as well as external affairs. The choice for the Sri Lankan government is to either co-operate with India on 13A to mitigate the West’s insistence on war crimes investigation, or alienate India and further aggravate the island’s internal and external circumstances.

Same 13A policy but different players

Modi’s resetting the clock indicates continuity in policy but discontinuity in method. Contrary to any fanciful notion that Sri Lankan government circles may have entertained that the new BJP Prime Minister would dump 13A as unwanted Congress legacy, Mr. Modi has affirmed that his new government will stand by India’s current policy on Sri Lanka as defined by the Thirteenth Amendment. What will change is the method of operationalizing it. In contrast to Manmohan Singh’s hands-off, laid back, disengaged and not-following-through approach, Modi’s mode of governance will be hands-on, focused, fully engaged and full of follow-throughs. Sri Lanka is not going to be a daily priority for the Indian Prime Minister, but it will not be relegated to the back burner with the fire put off. The priority would be set by India’s new Foreign Minister, the diminutive Sushma Swaraj with impressive political and experiential credentials. She is also quite familiar with the Sri Lankan file having led an all-party parliamentary delegation to the island in April 2012, when she was BJP’s Leader of the Opposition in the Lok Sabha.

Mrs. Swaraj is one of the high profile stalwarts in the Modi cabinet, a number of whom including Modi, Swaraj, Home Affairs Minister Rajnath Singh, and Finance and Defense Minister Arun Jaitley, cut their political teeth in their mid-twenties in the protest movement against Indira Gandhi’s 1975 Emergency Rule. Like many others in the new government, Mrs. Swaraj has her own RSS roots, growing up as the daughter of an RSS member. She has been a Supreme Court Advocate and she is married to one. Her political trace has quite a few first-woman milestones – Chief Minister of Haryana, Chief Minister of Delhi, Minister in former BJP governments, and Leader of the Opposition in the last parliament. Any South Asian leftist or progressive will cringe at lauding someone with RSS roots, and I do. But objectively, one has to concede that Modi and his band of RSS cadres have arrived at the pinnacle of India’s national politics motivated and determined to prove that they can do better than the grand old Congress Party. The Rajapaksa government should beware that part of that motivation and determination will rub off on Delhi’s dealings with Colombo. In Sushma Swaraj, G.L. Peiris will have a formidable counterpart. Mrs. Swaraj is also reputed to have been one of the dissenting voices in the BJP during Modi’s ascent as the Party’s Prime Ministerial candidate, and it is an indication of the respect she commands that Modi has magnanimously rewarded her with one of the three (or four) key portfolios.

The Sri Lankan government should also not make the mistake of misreading Tamil Nadu’s relationship with the new Modi government. Tamil Nadu is an industrial power house in the Indian economy and the State has maintained its economic strength independent of the corruption and antics of both the DMK and AADMK governments. But the extraordinary electoral success of the AADMK in the Lok Sabha elections signal some new developments in Tamil Nadu politics, although it would be childish to compare the victory of Jayalalitha’s AADMK in Tamil Nadu and the success of Modi’s BJP at the national level. The breakdown of alliances in Tamil Nadu split the opposition votes in every riding enabling the AADMK candidates to win easily. Yet, in most of the electorates the AADMK obtained huge majorities indicating the overall satisfaction of the electorate with the State’s economy and its incumbent government. Regional caste concentrations that have been a factor in previous elections were smashed by the AADMK wave in this election. Jayalalitha has had a friendly relationship with Modi in the past and that is on schedule to be re-established at their first post-election meeting on June 3, in New Delhi. She has in the past flirted with Modi’s and BJP’s anti-conversion Hinduthva ideology, and it is quite possible that she stayed away from a Left-front alliance to keep her options open to deal with a BJP government. For much of the campaign, Jayalalitha did not attack Modi or the BJP, and it was only towards the end she took them on because of the fear that she would lose minority votes if was seen as being soft on Modi and the BJP.

The June 3 meeting between Modi and Jayalalitha is billed to be on economic issues and centre-state finances. Apparently, she is trying restart with Modi what she started with Manmohan Singh three years ago and went nowhere. Modi and Jayalalitha will need each other politically and to what extent the Sri Lankan Tamil question will figure in their powwows is anybody’s guess for now. However, it will not be prudent for the Sri Lankan government to assume that Jayalalitha will not have any influence on Modi’s Sri Lankan policy, and it will be equally farfetched for Tamil matinee dreamers to see in Jayalalitha’s electoral success a vindication of their daydreams.

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The Judicial Mind and Judicial Matters in Sri Lanka

The rot started with the repudiation of Section 29 of the Soulbury Constitution by the legislature and the executive first on citizenship and then on language, with the judiciary meekly falling in line rather than calling its companion branches into order. As asserted by the authors, the Sri Lankan Supreme Court failed to emulate its Indian counterpart in propounding a corresponding basic structure doctrine for Sri Lanka.

| by Rajan Philips

( May 12, 2014, Colombo, Sri Lanka Guardian) What is mind? No matter. What is matter? Never mind. You might cynically apply this old aphorism to the judicial mind and judicial matters in Sri Lanka. Increasingly, the grey matter of intelligence, erudition, wisdom and independence is becoming too scarce in Sri Lanka’s judicial mind, and what can you do when you hear of judicial matters such as the now customary cavalier appointments to the Supreme Court, except shrug and sigh: Never mind!

But for lawyer and popular commentator Kishali Pinto-Jayawardena, and her co-authors, Jayantha de Almeida Guneratne and Gehan Gunatilleke, shrugging off judicial matters and saying "never mind" has never been an option. So they have brought out a new monograph entitled "The Judicial Mind in Sri Lanka; Responding to the Protection of Minority Rights", in the midst of questionable and controversial presidential appointments to the superior courts.

The book’s focus is narrower and sharper in that it is limited to a critical analysis of court rulings involving minority rights. Yet, the book and its timing bring into broad relief the hugely troubled terrain of the Sri Lankan judiciary. At the same time, by chronicling and critiquing over forty individual court rulings in different areas of the law and in judicially significant historical periods, the book brings to light the surprisingly broad scope of judicial complicity in the undermining of minority rights by the legislature and the executive.

There may not be a direct correlation between judicial complicity on minority rights and the parlous state of the judiciary today, but the book illustrates that complicity on minority rights became the slippery slope for the judiciary to slide from the lofty potentials at the time of independence to today’s pathetic pits. The authors say that they chose the title "The Judicial Mind in Sri Lanka" to show that their "focus is unequivocally on the judicial role" and their purpose is "not to dwell on political failures." The disturbing dialectic is that while political failures have contributed to the failure of the "Rule of Law", the failure of judicial institutions have enabled the entrenchment of state authoritarianism and the erosion of minority rights.

The authors rightly point out in the introduction that political failure is only part of the story and that Sri Lanka like other British colonies "shared a fundamental contradiction", as part of the colonial legacy, between the insistence on the force and universality of the law, on the one hand, and the accompanying reservations through the rules of exceptions and differences. They acknowledge, however, that despite this shared contradiction, the judicial trajectories in India and Sri Lanka have diverged quite differently in India and Sri Lanka, more positively upward in the former and disturbingly downhill in the latter. The divergence is associated with the "different directions that political liberalism has taken in India and Sri Lanka in the post-colonial period."

What explains these differences? The authors raise the question but regretfully the answer is not elaborate, apart from pointing to "all the dissimilarities in socio-political contexts" and the "contrasting constitutional histories." In fairness, the body of the book exposes some of these differences through the analysis of court rulings in specific cases but even a brief overarching summary would have been helpful to the reader.

The framework of "political liberalism" provides a useful analytical approach based on its three defining elements: a moderate state with its power fragmented by the counter balancing functions of the executive and the legislature and oversight by the judiciary; an active and able civil society; and basic legal freedoms which include "first generation civil rights" including freedom of speech, association, belief and movement, and property rights. It would seem that federalism in India has contributed to the positive fragmentation of state power, and it is to the credit of the Indian Supreme Court that it has conclusively established federalism as a basic structure of the Indian Constitution. This is a remarkable development considering that at its founding India’s constitution was far more pre-occupied with the threat of disintegration than any of Sri Lanka’s three constitutions.

Additionally, the principles of secularism and linguistic plurality were conscious political choices that have since been entrenched administratively and judicially.

Lack of Judicial boldness

Sri Lanka has gone in the opposite direction politically and judicially, starting with relative constitutional peace at the time of independence, sliding into public security and counter-terrorism pre-occupations, and finally falling into the current postwar quagmire. The book is thus divided into two parts. Five chapters in Part One deal with non-security cases involving language rights, employer-employee relationships, citizenship rights, land and housing rights, and religious rights. Although no cases appear to have been reported on the rights of minority religions to hold processions, a brief chapter (Chapter 5) is devoted to the practical application of the Police Ordinance in light of the foremost place given to Buddhism in the Constitution. Three Chapters in Part Two of the book address cases involving minority rights in the context of public security and emergency regulations, counter-terrorism, and the current postwar situation.

The analyses of individual cases in eight of the book’s nine chapters, including the detailed quantitative analysis of 24 landmark cases involving public security, offer critical insights into Sri Lanka’s judicial mind. I would limit myself to a few general comments about the book and the purposes it could serve. First, the number of cases identified as cases involving minority rights should be an eye opener to those who never stop asking the ignorant question – just what are the minority grievances? As the authors indicate, the book does not analyze all the reported cases and they had difficulties in accessing unreported judgments. Even politically informed people are mostly familiar with a few celebrated minority rights cases in the areas of citizenship, language and counter-terrorism. This book throws light on numerous other cases, including areas such as land and housing, employment and religious rights.

Equally remarkable is the authors’ conclusion that their comparison of the specific treatment of minorities in cases involving citizenship, language, employment, land and religion with the general jurisprudence on the corresponding issue revealed a fundamentally different treatment of minorities. In other words, "the judiciary appeared to have been unable to produce consistent jurisprudence across ethnic and religious lines on matters of language, employment, land and religious freedom." The rot started with the repudiation of Section 29 of the Soulbury Constitution by the legislature and the executive first on citizenship and then on language, with the judiciary meekly falling in line rather than calling its companion branches into order.

As asserted by the authors, the Sri Lankan Supreme Court failed to emulate its Indian counterpart in propounding a corresponding basic structure doctrine for Sri Lanka. Counter factually it could be said that the Supreme Court might have altered the course of post-independence history by affirming the bold judgments delivered by District Court judges first in regard to citizenship and later in regard to language. In both cases, the District Court rulings were overturned. There were not many instances of judicial boldness in Sri Lanka according to the authors and few will disagree. The celebrated Bracegirdle case, in the last phase of the colonial era, "was a singular instance of judicial boldness", and was rarely emulated by the Supreme Court after independence.

(To be continued)

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The new Indo-Lanka engagement: Getting the context right

by Rajan Philips

(May 29, Colombo, Sri Lanka Guardian) Last Sunday’s editorials and commentaries were pre-occupied with the Joint Statement from Delhi following delegate-level discussions between External Affairs Minister G.L. Peiris and his Indian counterpart, S.M. Krishna. As a visiting dignitary, Peiris also had an audience with Prime Minister Manmohan Singh, and met with Foreign Secretary NirupamaRao and National Security Advisor ShivshankarMenon. No one seems to know what transpired with the Prime Minister, but one commentator picked on Peiris’s clasped-hands posing for the photographs. The Joint Statement, however, drew flak from everyone, Left and Right, some polite, some pungent, and many over-the-top.

It beats me - what else could the minister, an eminent law professor with a weak national brief, have got the Indians to say in the statement? His going alone to Delhi was also criticised; but what difference could a team of officials have made in Delhi? One common thread in almost all the commentaries was that Sri Lanka cannot afford to ignore India especially in regard to Sri Lanka’s relationships with the outside world, particularly the western world. The bravado that India should be more circumspect, otherwise Sri Lanka will cultivate India’s competitors, does not cut ice. Simply put, Sri Lanka needs India more than India will ever need Sri Lanka. That is a fact of global life, and there is no need to feel bad about it.

Externally, Sri Lanka needs India to mediate with the West. Quarantining the island from the West is not an option, even temporarily. Internally, Sri Lanka needs India’s mediation to settle the Tamil question. Two years after the war and every form of denial, the Tamil question is still the elephant in the political parlour. The concern in Colombo is that India should not overstep good neighbourly limits in facilitating the resolution of the Sri Lankan Tamil problem. More bluntly, New Delhi should not be ‘wagged’ by political imperatives in Tamil Nadu and alienate the Sinhalese majority in Sri Lanka. Sri Lanka needs India, but how can we – as the Sunday Island editorial title aptly put it – help India help us? That is also the question, in the minds of many commentators.

Different music, different dance

Answering this question, I suggest, should begin by getting the context right – the current context in which Colombo and New Delhi are trotting to find their feet and dance to a totally different music. Different, I say, from the regional and global music - of the late 1970s through to 1990s - that was the backdrop to India’s involvement in the Sri Lankan Tamil question. It was the Cold War era, the Soviet Union was entangled in Afghanistan, Pakistan was firmly in the American camp, and India had a 20-year Defence Treaty with the Soviet Union. Indian economy was mostly state-led and stagnant, and its foreign policy, if not anti-West, was markedly not pro-West. The music today is quite different. The Soviet Union has disappeared, it is America that is in Afghanistan, Pakistan is hopelessly dysfunctional, and India for the first and for a seemingly long time to come has emerged into world reckoning as an economic power. Its foreign and regional policies have much in common with the US and the West. The market oriented economic growth and potential have brought India closer to the West.

With regard to Sri Lanka, India’s involvement in the Sri Lankan Tamil question and the cultivation of Tamil militancy during the 1980s was totally independent of the West, if not in defiance of the West. That distancing has shrunk over time, and in the current global and regional context, there is greater similarity in substance between India’s position on the Sri Lankan Tamil question and that of the West. India may not express this in international forums (as in the Geneva vote in 2009), but the Joint Statement was a different opportunity. Its reference to "investigations into allegations of human rights violations" has led to heckles in Colombo as code words for ‘war crimes investigation’. What might be more useful than heckling is to take note of the growing preoccupation with human rights and war crimes that is another aspect of the change in context from what used to go on without protest 30 years ago to the insistence on scrutiny and transparency that is prevalent now.

The R2P (Responsibility to Protect) proposition, the convulsions in the Middle East and trial-and-error in Libya, the fatally successful American operation against Osama bin Laden on Pakistani soil, and the handing over, last week, of Ratko Mladic by the Serbian government to the International Criminal Tribunal are indicators of the growing emphasis on the human and democratic rights and freedoms of citizens with attendant accountability of the violators of those rights and freedoms. Privileging people and their rights over the power of the states was also the theme of President Obama’s speech on the Middle East. Although boorishly sidetracked by the Prime Minister of Israel, Obama’s speech sums up the new direction in foreign policy that the young American President and his inspired Secretary of State, Hillary Clinton, are trying to give their country in the face of some stiff opposition from the extreme right and well established vested interests.

Quid-pro-quo?

India’s closeness to the West in this context is also the result of their common exposure to the threats of Islamic fundamentalist organizations. India has been fully supportive of America’s engagement in Afghanistan and is a firm supporter of the Karzai government in Kabul in his fight against the Taliban. And India must be relieved to see the unraveling of the Pakistani Military’s connections with Al-Qaeda and its support of the Taliban against the Karzai government. So, are India’s code words with Sri Lanka a form of quid-pro-quo for America’s campaign against the Al-Qaeda whose offshoots are of concern to India?

In using nuanced code words, rather than throwing Sri Lanka under the bus about which many commentators appear to cavil, India may seem to be appreciating the specific situation of Sri Lanka in the context of the allegations raised by the report of the UN Secretary General’s Panel of Experts. The question has often been raised as to why the Western countries while leading a worldwide campaign against international terrorism are not appreciative the Sri Lankan government’s successful campaign against the LTTE. One answer could be that the LTTE did not pose any international threat. The bigger answer is that there was more to the Tamil question than the LTTE and that the campaign against the LTTE, even if justifiable in many respects, disproportionately affected the larger Tamil community. But these arguments are reversible. Just like the LTTE, the Sri Lankan government poses no international threat. It is also a democratically elected government among the Sinhalese, in contra-distinction to the LTTE’s assertion that it was the sole representative of the Tamils. And the LTTE targeted non-combatant Sinhalese as much as it attacked the Sri Lankan army.

Looking ahead, as the Joint Statement observed "the end of armed conflict in Sri Lanka (has) created a historic opportunity to address all outstanding issues in a spirit of understanding and mutual accommodation imbued with political vision to work towards genuine national reconciliation". Addressing "all outstanding issues" would mean not only "a devolution package, building upon the 13th Amendment" as ‘affirmed’ by Minister Peiris, but also the issues ‘urged’ by the External Affairs Minister of India, viz.,"the expeditious implementation of measures by the Government of Sri Lanka, to ensure resettlement and genuine reconciliation, including early return of Internally Displaced Persons (IDPs) to their respective homes, early withdrawal of emergency regulations, investigations into allegations of human rights violations, restoration of normalcy in affected areas and redress of humanitarian concerns of affected families".

Addressing these issues sincerely and systematically is the only way for Sri Lanka to address its external and internal challenges that I noted earlier. Now that the bogeyman of the LTTE is gone, only the government is left to take responsibility and move forward. Realistically, the tasks listed above are not fully achievable in a single year, the entire second term of President Rajapaksa, or even all future terms of Mahinda Rajapaksa. But a beginning has to be made somewhere, and if a proper beginning is not made and built on with persistence and skill, the Rajapaksa presidency will lose its relevance and vitality.

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