September 2023


A war of words

As Sri Lanka’s economic policies and human rights record comes under further scrutiny, the blurring of lines between the pillars of democracy leaves the incumbent president accused of abuse of power. Neville de Silva reports

September is due to be a rather taxing month for President Ranil Wickremesinghe and his government after his predecessor fled the country last year, outwitting protesters gathered on his doorstep demanding his ouster.

The IMF, to which Ranil Wickremesinghe had turned in a desperate attempt to rescue the economy following Gotabaya Rajapaksa departure, will be in Colombo for two weeks from September 14 to assess whether Sri Lanka has satisfied the conditions agreed to, before deciding on the second instalment of its bailout package of $2.9bn.

Besides that, Sri Lanka will be facing an updated report from the UN High Commissioner for Human Rights on the country’s badly tarnished record on human rights, accountability and national reconciliation, when the Human Rights Council (UNHRC) meets in Geneva this month.

Sri Lanka has a perennial habit of adding to its self-created woes by ill-timed and short-sighted policies and undiplomatic statements – particularly before the UNHRC sessions –antagonising its long-time friends and certain member-states from supporting the island nation.

The ham-fisted decision-making on display during the Covid pandemic when the Rajapaksa government announced that Muslims dying of Covid could not be buried as Muslim tradition demanded, but instead, had to be cremated, resulted in several Islamic states distancing themselves from Sri Lanka at the vote, leading to Colombo’s worst-ever defeat in Geneva.

philosopher Montesquieu
the separation of powers envisioned by the 17th century political philosopher are under attack

Undaunted by such diplomatic faux pas, the Wickremesinghe government ‒ consisting of leftovers of the Rajapaksa regime – has shot itself in the foot again. With Sri Lanka due to figure at the Geneva sessions this month, barbs fired from the highest levels of government ‒ seemingly in the direction of the judiciary, have drawn heavy criticism at home.

It will doubtless be reflected in the High Commissioner’s update, adding to previous criticisms of the government’s high-handed moves to crush public dissent, freedom of expression and peaceful protests.

Some believe Sri Lanka’s presidential system of governance is typical of the separation of powers articulated by the 17th century political philosopher Montesquieu. However, Sri Lanka, unlike say the US, has a rather peculiar presidential system with the division between the executive and the legislature blurred. The president is de jure minister of defence and has the right to hold other portfolios at will – such as that of finance minister  ‒ as is the case of today’s President Wickremesinghe, who has addressed parliament and participated in debates more times than any of the preceding seven presidents.

The Wickremesinghe government ‒ consisting of leftovers of the Rajapaksa regime – has shot itself in the foot again

This executive-legislature nexus makes it easier to corral the judiciary and encroach on its powers and naturally, not all governments are happy when judicial decisions go against them or judges and magistrates do not respond in the manner, which some executive instruments of state ‒ such as the police, expect them to tamely do.

In May last year, Sri Lanka experienced the unprecedented spectacle of a retired Major- General ‒ planted by ex-military officer Gotabaya Rajapaksa into a civilian position as Secretary of the Public Security Ministry ‒ writing directly to the Chief Justice in an attempt to interfere with the functions of the judiciary.  The ‘plant’ accused lower court judges of being responsible for the violence that erupted during the mass demonstrations in which protesters demanded the ouster from power of the Rajapaksa family.

He is lucky to have got away with not being hauled up for contempt of court, which many informed persons expected the Attorney-General to do.

Such autocratic conduct, among others, continues to undermine democracy in Sri Lanka.’

But this time, the alleged ‘threat’ to judicial interference does not come from a retired military man deluding himself that pips once on his shoulders entitled him to make written accusations against the judiciary, but from the other two institutions of the separation of powers tripod – the executive and the legislature.

It concerns the words uttered by the country’s president himself, followed by a ruling of the Speaker of Parliament. The issue revolves round the government’s move to restructure domestic debt, following a call by Sri Lanka’s private creditors who were approached to undergo a ‘haircut’, as the IMF rather shabbily calls it, by taking a slice off the sizeable debts owed them.

Those international creditors wanted the government to restructure its own domestic debts to ensure equal treatment ‒ which the government did, raising a howl of protests from the private sector, civil servants and trade unions, who were understandably opposed to their retirement funds ‒ especially those of the poorer classes, turning into a crew cut while the rich escaped with nothing more than a snip, if at all.

The government however went ahead, using its parliamentary majority to pass a resolution supporting the domestic restructuring, leading to political parties and a trade union filing fundamental rights petitions in the Supreme Court.

Last month, at a meeting of the Coconut Growers Association ‒ which was more concerned with the future of their struggling industry, President Wickremesinghe made a dig at the judiciary, although he scrupulously avoided mentioning it by name.

He said the government would only heed the advice of parliament with regard to the debt restructuring process. Underscoring that parliament had sole control over public finance, he added: ‘We cannot take orders or instructions from anyone else.’

Only months earlier, parliament was threatening to summon three Supreme Court judges before its Privileges Committee to question them on a ruling they had made ‒ ordering the finance ministry secretary to release funds for local government elections that had been postponed; the government wanted them postponed further, spuriously claiming that it had no money for them, although the real reason lay elsewhere – the fear of losing.

The government ignored the Supreme Court determination.

On top of the presidential warning for ‘others’ to stay away, came a ruling by the parliament’s Speaker on a privilege issue raised by the tourism minister over the constitutional propriety of a resolution passed by parliament being challenged in court.

In an unusually quick ruling on the vital issue of the judiciary’s right to hear such petitions, the Speaker held that the ‘Supreme Court is not empowered to issue orders or judgements of any nature against a resolution already passed by parliament’.

While there appear to be contradictory opinions on the validity of the Speaker’s ruling delivered one morning, what has angered so many, was that it was perceived as a crude attempt to pre-empt the Supreme Court, which was to hear the petitions later that day. It prompted Opposition leader Sajith Premadasa to label Speaker Mahinda Yapa Abeywardena an agent of the executive.

Convenors of Lawyers for Democracy urge their president to stop interfering in Sri Lanka’s judicial process

Kishali Pinto-Jayawardena ‒ the legal affairs columnist of the prestigious Sunday Times  ‒  whose bitter comments two weeks running also referred to recent legislation and impending laws, were testimony to what many see as a concerted attempt at undermining democracy and crushing dissent.

While the committee of the Bar Association was still scratching its head (unlike its pro-active immediate predecessor that earned wide public respect), the Convenors of Lawyers for Democracy launched a scathing criticism of President Wickremesinghe, accusing him of a serious misuse of power with the aim of intimidating judges of the highest court.

In a strongly worded statement, the organisation said ‘Citizens’ rights to seek justice and submit their complaints to a court are constitutionally guaranteed. Any interferences amount to an assault on judicial independence and weaken the trust people have in the judicial system as a whole. Such autocratic conduct, among others, continues to undermine democracy in Sri Lanka.’

Those old enough to cast their minds back to 1983– the heyday of the country’s first executive president, JR Jayewardene– may recall how government goons attacked the homes of Supreme Court judges after the apex court had given a judgement against the police in a fundamental rights case.

President Jayewardene, uncle of the current president, not only promoted the policemen involved in the manhandling of a leading Trotskyist female politician during a protest, but arranged for the government to pay the personal fines imposed on the guilty policemen.

Justice, it seemed, had been done.

Neville de Silva is a veteran Sri Lankan journalist who held senior roles in Hong Kong at The Standard and worked in London for Gemini News Service. He has been a correspondent for foreign media including the New York Times and Le Monde. More recently, he was Sri Lanka’s deputy high commissioner in London

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