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An autochthonous Constitution

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Prime Minister Sirimavo Bandaranaike at the Constituent Assembly

1972 Constitution in Retrospect – I

By Dr. Jayampathy Wickramaratne
President’s Counsel

This week marks the 50th anniversary of Sri Lanka becoming a republic. We observe the anniversary at a time when the large majority of our people are yearning for comprehensive constitutional reform – “system change,” as they put it. Many believe that, after the failure of the first and second republican constitutions, the time is right for the Third Republic.

This article, in three parts, is based on a paper that I contributed to a collection of essays, titled, Sirimavo, published by the Bandaranaike Museum Committee, in 2010. When Sunethra Bandaranaike invited me to contribute an essay on the 1972 Constitution, I told her that I would be unable to say much good about it. This, I explained, was despite Dr Colvin R. De Silva, the Minister of Constitutional Affairs of the United Front government who steered the constitution-making process, being a former leader of the Lanka Sama Samaja Party to which I belonged and my senior in several fundamental rights cases, beginning with Palihawadana v. Attorney-General (Job Bank Case), the first fundamental rights case, under the 1978 Constitution. “You can write anything”, Sunethra assured me. My friend, Tissa Jayatilleke, edited the publication.

Replacing the Soulbury Constitution

The Independence Constitution of 1947, popularly known as the Soulbury Constitution, conferred dominion on Ceylon. The Governor-General was appointed by the British sovereign. The Parliament of Ceylon consisted of the King/Queen, the Senate and the House of Representatives. Executive power continued to be vested in the Crown and was exercised by the Governor-General. The Cabinet of Ministers was charged with the general direction and control of the government and was collectively responsible to Parliament. The form of government was in the Westminster model, which meant that the Governor-General would act on the advice of the Prime Minister. By the oath of allegiance, Senators, Members of Parliament, and all holders of office, including the Prime Minister, Ministers and heads of departments and judicial officers, swore to ‘be faithful and bear true allegiance to the King/Queen.The first move towards making Ceylon a Republic was made by S.W.R.D. Bandaranaike, who, on becoming Prime Minister, in 1956, informed the other governments of the British Commonwealth of Ceylon’s intention to become a Republic, within the Commonwealth. A Joint Select Committee of the two Houses of Parliament, on the revision of the Constitution, accepted the principle of establishing a Republic, within the Commonwealth. It was also agreed that the parliamentary form of government would continue with the President being a constitutional head of state. The President and the Vice-President would be elected by the legislature, fundamental rights recognized, appeals to the Privy Council abolished, and a court established to adjudicate constitutional matters and hear appeals from the Supreme Court.

Although sub-section 4 of section 29 of the 1947 Constitution provided that ‘in the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island’, the question whether Parliament could replace the British sovereign, who was a source of the legal authority of the Constitution and a constituent part of Parliament, had been raised, among others, by J.A.L. Cooray in his Review of the Constitution. The Privy Council stated in Ibralebbe v The Queen (65 NLR 433, 443) that the reservations specified in section 29 were ‘fundamental’ and in Bribery Commissioner v Ranasinghe that section 29 (2) was ‘unalterable under the Constitution’(66 NLR 73, 78). Although obiter (not essential for the decision), these statements gave support to a move initiated by the Left parties towards a new ‘homegrown’ or ‘autochthonous’ Constitution with a complete legal break from the existing constitutional order in preference to amending the Constitution. There was also a definite trend in the Commonwealth towards enacting ‘homegrown’ constitutions to replace those given by the United Kingdom.

The Constituent Assembly route

It was this trend towards and desire for an autochthonous Constitution that led the Sri Lanka Freedom Party (SLFP), the Lanka Sama Samaja Party (LSSP) and the Communist Party (CP) to not support the call of the 1965 government of Dudley Senanayake of the United National Party (UNP) to re-establish the Joint Select Committee on the Revision of the Constitution. The SLFP, LSSP and CP, which later combined to form the United Front (UF), whilst declining to serve on the Joint Select Committee, proposed that a Constituent Assembly be set up to adopt and enact a new constitution. At the general election of May 1970, the UF, as reflected in its manifesto, sought from the electorate a mandate to permit the Members of Parliament to function simultaneously as a Constituent Assembly. The Assembly would draft, adopt and operate a new constitution, the primary objective of which was to make the country a free, sovereign and independent republic dedicated to the realisation of a socialist democracy that would guarantee the fundamental rights and freedoms of all citizens.

At the above-referenced general election, 84.9% of the voters, a significantly high percentage even for an electorate known for its enthusiastic participation in elections, exercised their franchise. The UF won 116 out of 151 seats on offer but obtained 48.8% of the total votes cast. With the support of the six nominated members and the two independent members who won their seats with the help of the UF, the latter now commanded 124 seats in the 157-member Parliament. The UNP was down to 17 seats. The Federal Party (FP) won 13 seats while Tamil Congress (TC) won 03.

The Governor-General, in the course of delivering the first Throne Speech of the new Parliament, called upon the Members of Parliament to form a Constituent Assembly in keeping with the mandate asked for and given by the people at the general election.

That the Address of Thanks to the Throne Speech was passed without a division is also important. On 11 July, 1970, Prime Minister Sirimavo Bandaranaike wrote to all members of the House of Representatives to invite them for a meeting to be held on 19 July, 1970, to consider and adopt a resolution for constituting themselves into a Constituent Assembly.

The meeting was to be held at the Navarangahala, the newly constructed auditorium of Royal College, Colombo, and not in the chamber of the House of Representatives, signifying the intention of the UF to make a complete break from the 1947 Constitution. Dr Colvin R. de Silva, the Minister of Constitutional Affairs, emphasised that what was contemplated was not an attempt to create a new superstructure on an old foundation. It is a matter of great significance that all political parties, represented in Parliament, participated in the formation of the Constituent Assembly on 19 July, 1970.

J.R. Jayewardene, the Leader of the Opposition and Deputy Leader of the UNP, joining the debate on the resolution to set up a Constituent Assembly, reminded the UF that it had a mandate only from less than 50% of the people. Nevertheless, if both sides of the legislature, the victors and the vanquished, agreed to make common cause in enacting a new basic law through a legal revolution, that new law, if accepted by the people, will become the full expression of the hopes, desires and aspirations of the present generation.

V. Dharmalingam of the FP, while questioning the need to go outside the existing Constitution, noted: “We are making common cause with you in enacting a new Constitution not as a vanquished people but as the representatives of a people who have consistently at successive elections since 1956 given us a mandate to change the present Constitution which has been the source of all evil to the Tamil people.”

The leader of the FP, S.J.V. Chelvanayakam, urged the Assembly to reach common ground on controversial issues and quoted Jawaharlal Nehru in support: “We shall go to the Constituent Assembly with the fixed determination of finding a common basis for agreement on all controversial issues.”

V. Anandasangaree, speaking on behalf of the TC, stated that his party did not wish to be a stumbling block but requested the Government to be fair and adopt the new Constitution unanimously.

Indicating the acceptance of the Constituent Assembly route towards the adoption of a new constitution by all political parties, the proposed resolution to form the Constituent Assembly was unanimously passed on 21 July 1970.

It is significant that all political parties represented in Parliament participated in the formation of the Constituent Assembly, thus giving legitimacy to the process. However, the Constitution that the Constituent Assembly adopted lacked similar legitimacy. The Federal Party discontinued participation after the Assembly decided to make Sinhala the only official language. The United National Party voted against the Constitution. With all political parties agreeing on the Constituent Assembly process, it was a unique opportunity to adopt a constitution that had the support of the people at large. But Assembly proceedings show that the United Front, which had a two-thirds majority but had received a little less than 50% of the popular vote, imposed a constitution of its choice. The Constitution also extended the term of the legislature by two years which had a chilling effect on Sri Lankan democracy. There is certainly a lot to learn from the 1970-72 reform process.

Retaining the parliamentary form of government

Whilst the desire of the UF was to make a complete break from the Soulbury Constitution modelled on the British system, it nevertheless considered the Westminster model of parliamentary government to be suitable for Sri Lanka.

However, J.R. Jayewardene proposed the introduction of an executive presidency, a proposal opposed even by Dudley Senanayake, a former prime minister and the leader of the UNP. Interestingly though, Jayewardene was to have the last word. After he was elected Prime Minister in 1977, the UNP he led having obtained an unprecedented five-sixths majority in Parliament, Jayewardene introduced the executive presidency through the Second Amendment to the 1972 Constitution. He followed it up with the Second Republican Constitution of 1978, based on an executivepresidency sans any checks and balances usually found in countries with a presidential form of government.

It is salutary, in the above context, to recall the words and sentiments expressed by Sirimavo Bandaranaike during the debate on the Second Amendment to the Constitution: “The effect of this amendment is to place the President above the National State Assembly. Above the law and above the courts, thereby creating a concentration of State power in one person, whoever he might be. This has happened in other countries before, and history is full of examples of the disastrous consequences that came upon such nations that changed their Constitutions by giving one man too much power. (…) We oppose this Bill firmly and unequivocally. It will set our country on the road to dictatorship and there will be no turning back. This Bill will mark the end of democracy in Sri Lanka, as the late Dudley Senanayake realized when these same ideas were put to him in the United National Party.”

Dr De Silva warned against the danger of counterposing the Prime Minister chosen by the people who are sovereign against a President who is directly elected: “Let me put it directly and more strongly. You have the Prime Minister chosen by the people who are sovereign. Then, if you have a President, chosen also by the sovereign people directly through the exercise of a similar franchise, you have at the heart and apex of the State two powers counterposed to each other, each drawing its power from the same source, the sovereign people, but each drawing the power independent of the other.” No Constitution will be able to define adequately and satisfactorily the relationship between the two, he explained.

(Next: Part II: A Majoritarian Constitution)



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Apportioned Seats in Parliament and the “National List”

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by Prof. Savitri Goonesekere

The recent appointment of well known entrepreneur and businessman  Dhammika Perera to a seat in Parliament on the resignation of former minister Basil Rajapakse was challenged in several petitions in the Supreme Court. These petitions mainly  alleged a violation of the fundamental right to equality, nondiscrimination, and non arbitrary decision making in the filling of a vacancy created in regard to a seat in Parliament occupied (not through election,) but APPORTIONMENT  of seats, based on  the votes cast at a General election. This concept of apportionment of 29 of the total number of  seats in the electoral  system of proportional representation was introduced into the Constitution’s provisions governing elections and the Peoples’ franchise, by the 14th Amendment to the Constitution in 1988.

The appointment of Mr. Perera to Parliament on an apportioned seat, in the midst of an unprecedented and grave political and economic crisis generated public controversy. Some considered his appointment a welcome effort to bring entrepreneurial experience  into government at this time. Others viewed the appointment negatively and challenged its validity in these petitions in the Supreme Court. Mr. Basil Rajapaksa’s appointment had not been challenged in this manner. Field Marshal Sarath Fonseka had also held an apportioned seat, which had been challenged unsuccessfully in Centre for Policy Alternatives (CPA) v. Kabir Hashim in SC Appl. 54/2016. The possibility of bringing experts into Parliament through the apportioned seat process on the national list has been discussed even recently as a useful response to the current crisis.

The current petitions are of public concern, as they raised an important issue on the People’s right to franchise, and the meaning of  Constitutional and legal regulations applicable to apportionment of seats in Parliament, on the basis of the Peoples’ exercise of their voting rights. The case was an opportunity to clarify  the law and practice  on this important topic relating to the franchise, as well as the eligibility of  persons to occupy 29 apportioned seats in Parliament.

The petitions in the Dhammika Perera case were dismissed by the Supreme Court, at the preliminary procedural  stage of granting leave to proceed with the litigation. No reasons were given for the decision, though the court heard arguments of Counsel  in support of and in opposition to the petition. However the Court clarified that the refusal of leave to proceed was a split decision, with one dissent in a bench of three judges. Since no reasons were given, the approach of the majority and the dissenting judge   to the legal issues raised by Counsel  in regard to appointments to apportioned seats in Parliament, remains unknown to the public.

The decision of the court not to write a judgment and give reasons for refusing leave  after hearing Counsel in the Dhammika Perera case at this preliminary procedural stage, follows the practice of the Court in  exercising the discretion given in Article 126 (2) of the Constitution. The right to obtain relief for  violation of a fundamental right is a  right guaranteed by Article 17 and Articles 126 (2) and  (4). The Supreme Court has been given a discretion by Article 126 (2) to decide whether it will grant leave to proceed with the application for relief and remedy for alleged violations of fundamental rights. This follows a tradition in Common law jurisdictions to ensure that courts are not overburdened in litigation, also reflecting a policy approach on  avoiding  unnecessary costs of litigation. Yet there is also jurisprudence in the Supreme Court indicating a different approach to the granting of leave to proceed.

In the Shirani Bandaranyake Appointment to the Supreme Court Case (1997 1 SLR 92 ) the Chief Justice decided that the case raised an important issue of “general and  public importance” and referred the applications to a bench of seven judges. Justice Mark Fernando speaking for the court said that “having regard to the complexity and gravity of the questions involved, Counsel for both the petitioners and respondents were heard in support of and opposition to the petitions.” (p 93). Justice  Fernando and Justice Perera wrote separate judgments, in a unanimous decision of the Court to refuse leave to proceed, creating important jurisprudence on this subject.

If this approach articulated by Justice Mark Fernando guides the Supreme  Court, and is clarified in Rules of the Supreme Court, petitioners and the public will know the basis on which the Supreme  Court refuses leave to proceed with a Fundamental Rights Application, relating to an important issue of public concern. The issue of apportionment of seats in Parliament is an issue of public concern to voters, just  as appointments to high public office, as  in the Shirani Bandaranayaka case also raised issues of public concern. Giving reasons can only enhance the stature of the court as an indispensable institution in the administration of justice in a Constitution that perceives the courts as exercising the “judicial power of the People” [Article 4 (c)]. This was also referred to in the judgment of the Supreme Court in the Dissolution of Parliament case (2018.) Citing an American case, Baker v Car (1962), His Lordship HNJ Perera CJ said “the court’s authority possessed of neither purse nor sword ultimately rests on sustained public confidence.”(Sampanthan v AG (2018) p 69).

The unresolved constitutional issue of   appointments to Parliament on apportionment, and the National List.

Article 99A introduced by the 14th Amendment is very clear on the persons eligible to occupy apportioned seats after a general election. The meaning of this Article, in the context of the statute law also regulating elections i.e. the Parliamentary Election Act  No.  1 of 1981 was the crux of the case argued by Counsel for the petitioners in the Dhammika Perera case. Geoffrey Alagaratnam  PC former President of the Bar Association and other eminent lawyers  who supported the petitions drew attention to  the need to  clarify the law on this important issue of public concern, because of a seeming conflict between the Constitutional provision (Article 99A) and Section 64 (5) of the Parliamentary Elections  Act (1981).

Article 99A of the Constitution clearly states that persons allocated apportioned seats in Parliament based on the votes cast at a general election must be persons eligible to be MPs,  whose name appears on a list submitted within the period of nominations, to the Commissioner of Elections. This list is now popularly known as the “National List,” from which  a person may be nominated  to hold  a seat on the basis of apportionment and votes cast at the general elections. Article 99A also includes another category of persons who can hold such a seat. This is a person whose name is on an electoral list. Article 99A does not indicate that there is any other requirement of eligibility. It is therefore clear from Article 99A of the Constitution that both defeated candidates and persons on the National List are eligible to occupy apportioned seats.

The issue of defeated candidates occupying these seats is therefore an ethical rather than a legal or Constitutional issue. Consequently Mr. Ranil Wickremesinghe is lawfully occupying the seat apportioned to the UNP, though he was defeated at the General  Elections (2019) and also publicly stated that candidates defeated at a General election should not occupy seats apportioned to the party. However Article 99A as argued by Counsel in the Dhammika Perera case does  not permit persons who are NOT on the National list submitted at the time of nominations, to be allocated apportioned seats in Parliament. The procedure set out in Article 99A is for the Commissioner of Elections to request a Secretary of a party to nominate persons to fill an apportioned seat. The language of 99A does not enable persons outside these categories to be considered eligible to hold these apportioned seats.

The popular idea that a party in Parliament, particularly at this time of a national crisis, can bring to Parliament professionals and others with special expertise, does not conform to the eligibility criterion set out in Article 99A. Therefore, persons who occupied these apportioned seats, whether Basil Rajapaksa or Sarath Fonseka also did not satisfy the Constitutional provision on eligibility to fill an apportioned seat. Article 99A seems to have been ignored in discussions on appointments to Parliament on the national list.

It is also clear that this Article 99A in the Constitution casts a duty and responsibility upon the Commissioner of Elections and the Secretary of a Political Party who nominates a person to an apportioned seat to abide by Article 99A. The Commissioner is a public servant, and he can be sued in a fundamental rights violation case relevant to wrongful allocation of an apportioned seat. The Secretary of a Political party is a Non-State actor but becomes liable for a wrong decision since our courts connect him to the inaction of the State or government agency in ensuring conformity to the Constitution. (Faiz  v. AG (1995 1 SL 372).

The PROVISIONS in the Parliamentary Elections Act 1 of 1981 on VACANCIES to one of the 29 APPORTIONED seats in Parliament

The Parliamentary Elections Act (1981) Section 64 was amended consequent to the 14th Amendment in 1988. This provision in the principal enactment of 1981 dealt with filling of vacancies in seats in Parliament. When the 14th Amendment provided in Article 99A for a National list, and apportionment of seats,  a new provision Section 64 (5) was introduced  into  the principal legislation, the   Parliamentary Elections Act, to cover the procedure for filling  vacancies to these apportioned  seats.    Section 64 (5) enacted by an amendment of 1988, i.e. the same year as the 14th Amendment, uses the words “Notwithstanding anything in the previous provisions” (ie on vacancies in regard to ordinary seats in the principle enactment of 1981), and sets out a PROCEDURE  for filling vacancies in the special APPORTIONED seats created by Article 99A of the 14th Amendment. This 1988 provision Section 64 (5) added to  the Parliamentary Elections Act indicates that in the case of persons occupying these apportioned  seats, a vacancy is filled by “the Secretary General of Parliament informing the Commissioner of Elections who then requires the Secretary of the Party or leader of the relevant  independent group apportioned a seat to nominate a member of such party ” to fill the vacancy. It is this language on PROCEDURE in filling vacancies to apportioned seats,  that  is now being used to argue that the Secretary of a party or leader of an independent group has complete discretion to appoint a person of his/ her choice to fill a vacancy.

Our Constitution has  a controversial Article 16 (1)  that has been consistently criticized, which  does not permit judicial review of legislation once it is enacted by Parliament. Even in jurisdictions like  India,  South Africa and Canada, that permit judicial review of legislation for non-conformity with the Constitution, there is a legal concept of “Presumption of Constitutionality of legislation” and “reading down” legislation in order to follow a “purposive” interpretation that seeks to harmonize the basic law of the land, a country’s Constitution and legislation enacted by Parliament.

In Sri Lanka in the in the cases AG v Sampath SC Appeal 17/2013 and SC Ref 3/2008 the Supreme Court refused to follow a provision in the amended Penal Code of 1995 that provided for minimum sentences on the ground that the legislation could not be interpreted as restricting the judicial discretion of the Courts. Both these judgments  held that the power of interpretation of law is embedded in the judicial power recognized in Art 4 (c) of the Constitution. This could not be restricted by ordinary law (in this case the amended Penal Code) since the Constitution is the Supreme Law. While this decision may be critiqued as in conflict with the restricted power of post enactment judicial review of legislation  in our Constitution, the decisions indicate that there is a rationale for interpretations that seek to give predominance to the Constitution as the basic law of the land.

As Mr. Alagaratnam PC and other Counsel for the petitioners argued in the Dhammika Perera case, interpreting section 64 (5) of the Elections Act as giving an absolute discretion to the Secretary of a Party or the leader of an independent group apportioned a seat, to fill a vacancy in  that seat, means that he/she  can ignore completely the criterion on eligibility  for apportioned seats, so clearly set out in the 14th  Amendment, when it introduced a concept of apportioning 29  seats. This is surely a situation where an interpretation must be adopted that recognizes rather  than undermines the  significance of  basic  Constitutional provisions on eligibility to occupy a seat in the legislature.

In CPA vs Kabir Hashim,  Sripavan CJ  delivered a short judgment, when  refusing leave to proceed in a petition challenging the nomination  of  Sarath Fonseka to a vacancy in an apportioned seat. His Lordship held that the issue of filling vacancies was not considered in Article 99A of the Constitution (on apportioned seats). This was regulated by the procedures detailed in Section 64 (5) of the Parliamentary Elections Act which, His Lordship said, gave a discretion to the secretary of the party or the leader of an independent group to nominate the person to fill a vacancy in an apportioned seat. His Lordship did not, with respect, address the substantive requirements for  eligibility to occupy an apportioned seat, that were set out in Article 99A, when the 14th Amendment to the Constitution created this new category of seats in our Parliament. His Lordship’s opinion also takes a different approach to ordinary law vis- a-vis the Constitution as the “supreme law of the land,” in the cases referred to earlier.

It is with respect difficult to consider the decision in CPA v. Kabir Hashim as a judicial precedent that binds the Supreme Court, and prevents the matter being considered again in light of the specific language in Article 99A of the Constitution on eligibility to occupy an apportioned seat in Parliament. The Supreme Court has not followed a strict approach to the concept of “stare decisis” or binding precedent in a context where the structure of our courts has changed through  both  statutes   and post independence Constitutions. The capacity of a superior court to contribute to development of the law without being fettered by previous decisions is reflected in important decisions of judges like Basnayaka CJ in Bandahamy v. Senanayake (1960) 62 NLR 313 and Wanasundere J in Walker Sons v Gunathilleke (1978- 19801 SLR 231.

Conclusion

It is in the public interest that the meaning of Article 99A and the policy on apportioning 29 seats in Parliament is clarified and addressed in any further amendments to the Constitution. Giving a complete discretion to a non-State official like a Party Secretary to choose persons entitled to fill vacancies in apportioned seats based on electoral votes, undermines voting rights. There is also the public interest in having persons qualified to occupy these apportioned seats being nominated initially,  or in  filling vacancies that are created later. More specific criterion of eligibility to take apportioned seats will also address the public interest in bringing a diverse range of experience to the legislature of the country through the National list. Such an amendment should also clearly make defeated candidates not eligible to occupy such seats.

The Dhammika Perera case raises once again an issue of public concern in regard to filling vacancies in the 29 apportioned seats in Parliament, either through the national or electoral list. Clarifying the law can be done without delay through the contemplated current Constitutional reforms. If this is not done, it seems important for the Chief Justice to appoint at least a Divisional Bench to provide a clear interpretation of Article 99A of the Constitution or point to the important need for clarity on this matter through a Constitutional amendment.

Litigation in the courts and ground realities indicate that there are many important unresolved issues that require constitutional reform. Even within the current Presidential system, the cumbersome procedure for impeachment of a President and also judges of the Supreme Court, and appointments on the National List, clearly require significant review and reform. And yet, ad hoc constitutional reform efforts like the 19th Amendment, 20th Amendment and the proposed 21st Amendment, seem to ignore public concern for reforms in these important areas. There should be public advocacy to ensure that all these areas are addressed immediately in the current constitutional reform process.

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When will the Gang of Four be held accountable for their irresponsible decisions?

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by Sanjeewa Jayaweera

Most living in Sri Lanka feel like they have got into the boxing ring with Muhammad Ali. The ferocious punches thrown regularly are taking their toll, with most either on their knees or on the canvas. The final punch that will knock us out seems inevitable, but the question is when?

The pounding started initially with queues to buy milk powder for children, which then got extended to buying cooking gas, then to long power cuts, and now to queues extending several kilometres to buy petrol, diesel, and kerosene. Along the journey of suffering, we have also been penalized with hyperinflation. The saying “it never rains but it pours” seems so accurate.

The country is facing a humanitarian catastrophe of a magnitude not previously experienced. Most foreign commentators say, “Sri Lanka is facing the worst economic crisis since 1948.” In a release, the World Food Programme (WFP), the world’s largest humanitarian organization, stated, “An estimated 4.9 million people – 22 per cent of the population – are currently food-insecure and require humanitarian assistance. Reduced domestic agricultural production, scarcity of foreign exchange reserves and depreciation of the local currency have caused food shortages and a spike in the cost of living, which is limiting people’s access to healthy and affordable meals. The economic crisis will push families into hunger and poverty – some for the first time – adding to the half a million people who the World Bank estimates have fallen below the poverty line because of the pandemic.”

The latest WFP assessment reveals that 86 per cent of families are buying cheaper, less nutritious food, eating less and, in some cases, skipping meals altogether. Before the economic crisis and the pandemic, malnutrition rates across Sri Lanka were already high. Before the COVID-19 pandemic, Sri Lankan women and children suffered from far higher rates of malnutrition than most other middle-income countries: 17 per cent of children aged under five were too short because of stunting, and 15 per cent were too thin for their height (wasted). The current economic crisis will likely aggravate this further.”

The peaceful uprising, predominantly by the youth referred to as the “Aragalaya”, and the violence that erupted on May 9 resulted in the resignation of the Prime Minister and the cabinet. Thankfully, quite a few unsavoury characters are no longer in the cabinet and have remained mainly underground, although a few are making occasional media appearances to test the waters. A few less savoury but still abject failures of the Mahinda Rajapaksa regime have managed to get back into the cabinet. It is a paradox that a person who led his party to political oblivion and lost his seat is now the Prime Minister. So much for the will of the people!

However, my article is about the architects of our economic Armageddon. In a previous article, I identified them as Nivard Cabraal , P B Jayasundera , S.R. Attygalle and W D Lakshman and referred to them as the Gang of Four (G4). I have consistently advocated for the G4 to be charged and prosecuted for their actions that I would call criminal.

I am glad that recently a Fundamental Rights (FR) petition has been filed in the Supreme Court (SC) seeking appropriate action against those responsible for the prevailing economic crisis in the country, including the G4. One must hope that the SC will commence hearing the case on a priority basis and arrive at a verdict as soon as possible because most people I talk to say, “These fellows should be taken to Galle Face and be mercilessly whipped!” Although I don’t subscribe such drastic action, I understand their anger.

A few weeks back, the Committee on Public Finance (COPF) called the G4 for a hearing to ascertain the reasons for the economic collapse. Unfortunately, I have not been able to view the entire proceedings of the hearing as only a 15-minute video is available on YouTube. In that clip, Nandalal Weerasinghe, the incumbent Governor of the Central Bank of Sri Lanka, in an apparent snide remark aimed at Attygalle, said, “Responsible Government officials should refrain from engaging in politics and that the difference between a politician and an official should be properly recognized.”

It must be recalled that Attygalle was appointed as the Treasury Secretary in haste by the Mahinda Rajapaksa(MR) administration during the short-lived constitutional crisis in 2018. Some will also remember how MR immediately appointed Kapila Chandrasena as the CEO of SriLankan Airlines but had to quickly rescind the appointment due to public backlash. It was only subsequently revealed that Chandrasena’s wife had been paid US $ 2 million by Airbus as a bribe.

The belief is that many of the appointments made by MR appear to have been based on friendship and loyalty as opposed to competence. Therefore, it might be difficult for Attygalle to convince too many that he is not politically aligned with the Rajapaksas.

When questioned about the tax cuts that resulted in a significant loss of revenue to the government, Attygalle said that due to the commencement of the covid pandemic, it was not possible to pass judgment on whether the experiment of reducing taxes was correct. However, it does not need an Einstein to predict that a country grappling with a chronic budget deficit and a balance of payments crisis would get into severe economic difficulties due to such irresponsible decisions.

I highlighted my concern over several of the tax proposals in an article written by me called “Sri Lanka’s Tax Conundrum” published in the Sunday Island of January 12, 2020. Although I am no economist, my two and half decades of working in Sri Lanka, mainly as a Chief Financial Officer in several hotels, manufacturing and retail businesses, have given me sufficient knowledge and exposure to raise concerns.

The tax cuts entailed the reduction of Value Added Tax (VAT) to 8% from 15%, reduction of corporate tax for manufacturing companies to 18% from 28%, abolishing the 2.5% Nation Building Tax, the increase in the taxable supply threshold for VAT from Rs. 12 million to Rs. 300 million, the increase in single-person tax-free allowance to Rs. 3 million from Rs. 1.2 million together with significant widening of tax slabs and reduction of rates resulting in the highest rate coming down to 18% from 24%.

All these changes were done with no projection of how much tax revenue will be lost. Neither was there any comment about how the government intended to bridge the revenue deficit. It was all so reckless and irresponsible.

The international credit rating agency, Fitch Ratings, reacted immediately and, in a release, stated that tax concessions granted are “credit negative” and revised the outlook on Sri Lanka’s Long-Term Foreign-Currency Issuer Default Rating (IDR) to Negative from Stable.

These agencies are independent and skilled in their assessments. However, our Treasury Secretary (Attygalle) and the Central Bank Governor (Lakshman) released statements sharply rebuking the Fitch statement. In fact, in a TV chat show, he accused the international credit agencies of being politically biased and being part of an international conspiracy against GOSL! Furthermore, every subsequent downgrade of our credit ratings drew a sharp rebuke from Attygalle, Lakshman and Cabraal, questioning the motives of such downgrades.

For those of us who had engaged credit rating agencies on behalf of the companies we worked for, such criticisms were not valid and were downright stupid. Given the critical role that international rating agencies play, commonsense dictated that even if there is disagreement, there was a need for a far more diplomatic engagement and consensus building than releasing strongly worded rebukes and questioning their motives. The arrogance and the stupidity of the G4 are stunning.

In addition, in their infinite wisdom, the GOSL also decided that the PAYE tax at source previously collected from employers and Withholding Tax (WHT) from interest income paid by banks and financial institutions to individuals should be abolished. To say that this was a stupid and irresponsible decision is being polite.

In my article of January 12, 2020, I published a table from the Department of Inland Revenue Performance Report for 2018 setting out statistics of low compliance by businesses and individuals when filing their tax returns from 2013-14. I stated, “In such a scenario, expecting individuals to be compliant with their tax returns and payment of quarterly tax is being optimistic.”

I believe the architect of the above changes was none other than PBJ. When he was the Treasury Secretary during the period 2010 – 15, at many private sector forums, he said, “I have told the IRD to stop worrying about collecting PAYE taxes as the collection is so small.” However, he also stated, “If government servants are exempt from income tax, why should the private sector employees pay tax?” The end result was that many of us had our income tax files closed by the IRD, which was way back in 2011!

The decision to print money under both Lakshman and Cabraal led a former deputy governor of the CBSL to state that “Lakshman has turned the CBSL to a printing press.” It is believed that the G4 and others in charge of economic policy were disciples of the highly controversial Modern Monetary Theory (MMT). Many independent economists raised concerns and predicted that such action would lead to hyperinflation. Abraal arrogantly refuted these concerns.

The Island of April 27, 2021 quotes Cabraal as follows “State Minister of Money and Capital Markets Ajith Nivard Cabraal said yesterday that there was no relationship between money printing by the Central Bank of Sri Lanka and the depreciation of the local rupee in the foreign currency market. Minister Cabraal commented while responding to questions during an interview on Swarnawahini television. When asked whether the value of the Sri Lanka rupee showed a negative correlation to a surge in money printing by the Central Bank as the Opposition claimed, the state minister replied, “Generally, people say it may be because they don’t know. The issue is when those that claim to be in the know of these matters also say the same thing.”

The G4 also pursued a policy of keeping interest rates well below the inflation rate. This was purported to encourage borrowing. This ludicrous policy resulted in depositors being able to negotiate higher rates for their US Dollar deposits than for their LKR deposits! One of the first actions of the new Governor was to increase the treasury bill interest rates significantly. It is a tried and tested formula to raise interest rates to curtail demand and reduce inflation. Currently, the world over, nearly all central banks have resorted to this policy. It seems that G4 are the only exception.

The decision to peg the Lankan Rupee to the US Dollar at 200 for a considerable period against the advice of many independent economists and bankers has had a debilitating impact on our economy. Undoubtedly, this has resulted in a burgeoning black/ grey market where the rate differential was significant. In addition, this has led to a substantial decrease in the receipt of remittances by Sri Lankans working overseas and also by exporters who may be keeping the funds overseas in anticipation of a devaluation. We all are fully aware of the pain now endured by a lack of dollars in the country.

Having held on to the US Dollar to LKR 200 for too long, the Monetary Board under the chairmanship of Cabraal recklessly let go of the peg resulting in a steep depreciation of the LKR by nearly 80% over just two months. This was despite the IMF’s explicit warning that any peg relaxing needs to be done carefully and systematically. A couple of members of the former monetary board have stated that Cabraal unilaterally decided to abandon the peg. This is being disputed by him, claiming that it was a collective decision. Whether it was collective or unilateral, Cabraal needs to bear complete responsibility for this reckless decision that has upended the lives of millions of our people. Lastly, I must say that my personal opinion is that the members of the Monetary Board who objected to the policy decisions of Cabraal should have resigned and made their reasons public at the time. To claim that to have resigned would have been cowardly is unacceptable.

Cabraal has recently released several public statements in which he has attempted to exonerate himself. He has stated that even now, the exchange rate is being pegged, and money is still being printed. Yes, no doubt. However, the damage done in the last two years is so immense that it is impossible to stop the rot immediately. As the saying goes, it is like riding a tiger and not being able to get off. That is the country’s predicament.

I believe the COPF meeting ended with another scheduled follow-up meeting. There has been no news of any further deliberations involving the G4. I doubt whether anything of value emanates from these deliberations. In the last couple of months, the Committee of Public Enterprises (COPE) reviews, Chaired by Professor Charita Herath, have made headlines over how poorly the state-owned enterprises are being administered and managed. However, for me, they are just theatrics as most such disclosures have been included in the Auditor General’s reports of such enterprises and have been in the public domain for quite some time. It is just that no one bothered to read such reports.

Undoubtedly, the G4 need to be charged and prosecuted for bringing this country and its people to its knees. Our lifestyle has been taken back several decades. As stated in the WFP report, millions of our people will starve and be malnourished. The youth of our country, referred to as the future, do not see any future, and most are in a mad scramble to leave the country.

The President, PM and the Cabinet are equally responsible for this dastardly state of affairs. Still, for me, the G4 bears the greater responsibility in that, as so-called experts, they failed, and their failure is due to sheer arrogance and their reckless decision to experiment with the lives of millions of people.

For me, the comment made by MP M A Sumanthiran when addressing the G4 at the COPF meeting is relevant in meting out punishment to those responsible for the current situation in our country. He said, “The former minister of finance Mangala Samaraweera, who was a fashion designer and not an economist, predicted in October 2019 that the tax proposals of Gotabaya Rajapaksa as set out in his manifesto would result in an express train to bankruptcy, default and a Greek-style financial crisis.” He rebuked the G4, saying that their so-called expertise in economic management could not foresee what a fashion designer was able to!

That is precisely my conclusion too. This is a man-made disaster, and it is a travesty of justice that those responsible are still not behind bars whilst the people of this country are on their knees.

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NAKED, BUT NOT ASHAMED IN WASHINGTON

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by ECB Wijeyesinghe

When the sun comes over the mountains, Washington DC in August can be as hot as – well, as Colombo in April.

For one thing, it is a good change from the misery of a London summer when it sizzles and drizzles alternately. In the capital of the US the moods of the weather, like the people, are more predictable. But that is of little help when you arrive in your hotel. hot and tired, in a heavy all-purpose tweed suit, drenched with perspiration, and without the means of getting into a change of clothing. For the fact of the matter is that my suitcase was missing when I reached Washington.

It had been over carried by the domestic airline which brought me from New York, and it was now probably resting placidly in some West coast airport waiting to be claimed by an owner who was not there. Though I surrendered myself to the thought that everything happens for the best in this best of all possible worlds, I could neither eat nor sleep. The lunch hour passed. It was time for the siesta, but I have still to meet the man who can have a siesta on an empty stomach.

The cup of tea brought nostalgic memories of home and the humidity etched the picture sharper in my mind. The dinner hour approached on leaden feet. I am glad there was no gong. It would have sounded like a death-knell. And so to bed. I, without anything on. I wished I could sleep and thereby end the heartache and the thousand natural shocks caused by a missing suitcase.

Hamlet must have been a happy man compared with Wijeyesinghe in Washington. My bedroom in the hotel was not air-conditioned. There was only a blower which pumped in hot air from outside It was one of those wheezy contraptions that the Lionel Wendt Theatre uses occasionally to keep VIP’s cool and to prevent them from leaving the hall after the first Act of a play. Finally, I had an idea. I thought that, as the witching hour of midnight was approaching, I might play my last card. I prayed:

De profundis ad to clamavi Domine,

Domine, exaudi orationem meam.

Having muttered this invocation which of course means : “Out of the depths have I cried to Thee, 0 Lord. Lord, hear my prayer.” I turned over on my side and tried to snatch some sleep. The clock struck twelve and almost immediately afterwards there was a loud knock on my bedroom door. For a moment I did not answer. I hesitated, because opening the door to investigate meant getting out of bed. And, I had nothing on.

So in the most stentorian voice that I could muster, I shouted, more in fear than in anger, “Who the devil is that?” “Porter sorr.” Said an equally stentorian voice from the other side of the door. “What do you want?” I said trying to cover my nakedness with a sheet that was not there. “Your suitcase is here,” said an unmistakable Negro voice. I asked him to come in and leave the bag somewhere, anywhere, and quit before he became aware of my predicament.

More than once I thanked him most profoundly, with an air of finality, for the service he had rendered at that time of the night; but the man did not budge. I had hoped that like Old Man River he would just roll along after leaving the suitcase in the room. But he soon revealed his intentions as he approached the foot of my bed.

“Tip, sorr.” He said in a slightly aggressive tone.

Here was a problem that could not be solved by being too puritanical. The night was dark and so was I. The porter was a male and so was I. There was nothing to hide. So, taking one consideration with another I leaped out of bed, rushed to my coat and with the alacrity of a conjuror removed fifty cents from my purse. Using the coat as a sort of shield I approached the porter and placed the coin in his outstretched palm.

With a sigh of relief I muttered another brief prayer of thanks as the door closed behind the porter. Before I got into my sarong and inspected my belongings, I switched the light on and had a good look at myself in the mirror. I thought I had acquired a couple of wrinkles which I had not noticed earlier. The next morning, clothed and in my right mind, I thought my first duty as a loyal citizen of Lanka was to pay my respects to our Ambassador, who happened to be Mr R.S.S.Gunawardene. (He was knighted later.)

MEETING RSS

R.S.S. is a genial man, full of savoir faire, and according to people who know something about these things, he is said to ooze with sex appeal. One or two ladies of my acquaintance have confirmed this. The Ambassador promptly invited me to lunch and over a simple rice and curry meal, which included a hot sambol a mellun and papadam, he held forth for two hours.

R.S.S. is a delightful talker, full of strange stories about people, especially politicians. Having been a schoolmate of S.W. R. D.Bandaranaike, Herbert Hulugalle, Arthur Ranasinha, R.S.de Saram, E.B.Wikramanayake and other celebrities, he talked incessantly about their strengths and their weaknesses, especially their weaknesses, which of course were much more interesting than their virtues.

At the end of this entertaining luncheon dialogue, I tried to recall my contribution to the conversation and found that I could write what I had said on a picture postcard. My other distinguished Ceylonese host was Mr. William Tennekoon, the bashful banker. He was quite a contrast to the ebullient R.S.S. In his own quiet way he could be pungent in his assessment of men and matters, and his charming wife sometimes broke into a smile of reproof whenever she thought he was exceeding the bounds of discretion.

SCOTCH AMERICAN

During the first few days I spent in Washington DC. I was introduced to an American couple who had spent many happy days in Ceylon. The husband had served in the Navy during the War and he had no doubt that Trincomalee had the finest harbour East of Suez. After the second cocktail, he told me that he had no doubt that the Ceylonese were the most lovable people in the East. After the third cocktail, he confessed that the women of Ceylon were the most beautiful in the world, a statement which brought a faint blush of jealousy to the cheeks of his good-looking wife who was sipping a sherry, and thought that the time had come to sit to dinner.

Nobody knows what confessions he would have made after the fourth cocktail. His name I believe, was MacMillan, and of Scottish extraction. Even his wife called him Mac. He had a big fund of yarns, mostly about Scotsmen. One of his best he said, was also the favourite of President Taft, whose ancestors came from England.

A Scotsman, he told me, went out one bitterly cold day on the golf links, did the whole 18 holes, tramped back and at the end of it all gave his caddy a miserable tip of three pence.

The caddy looked hard at the man and said:

“Do you know I can tell your fortune by these three pennies?”

The man shook his head, as if he entertained a doubt, and the caddy stared at the first penny.

“This first penny,” he said, “tells me that you are a Scotsman. Right?”

“Yes.”

“The second tells me that you are a bachelor.”

“Yes.”

“And the third tells me that your father was a bachelor too.”

With that Mac gulped down his final liqueur, roaring with laughter, and brought the curtain down on a most enjoyable evening.

(From The Good At Their Best first published in 1979)

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