“Poorly drafted statutes are a burden on the entire State. Judges struggle to interpret and apply them. Attorneys find it difficult to base any sure advice upon them and the citizens desire to conform to them is confused. At times, totally unforeseen results are seen… On many occasions, defects lead to litigation.”
J. Menard, Legislative Counsel.USA
The Draft Bill, titled Colombo Port City Economic Commission Act 2021, is an important piece of legislation. It can be described as a game-changer for Sri Lanka. It is the biggest foreign investment received by Sri Lanka and it can lead to a success story as in many other countries. At this stage, review of the Draft Bill is of paramount importance, as it constitutes a marketing tool along with the Master-Plan prepared by the Chinese Harbour Company Ltd.
Unfortunately, this Draft Bill was not subject to pre-parliamentary review by our professional organisations and the epistemic community. In modern times, there is a constitutional practice in Commonwealth countries to consult the stakeholders, professional bodies and the epistemic community in regard to important legislation. The Advisory Council, appointed to draft the Securities Exchange Commission Bill 2019, under Dr. Kanag Iswaran, of which I was the Drafting Consultant, decided to involve the stakeholders and those interested in the subject matter by providing them with an exposure draft. It was a very useful exercise to clarify any ambiguities, inconsistencies and grey areas which can create problems in the implementation process.
Before I deal with the review of the draft Bill, I would like to provide a global perspective on legislation relating to port cities and special economic zones.
Legislation relating to port cities and special economic zones differ from one jurisdiction to another. There is no uniformity in such legislation, as “one size does not fit all”.
In Latin America and the Caribbean, special economic zones or offshore financial centres have grown piece-meal over a period of time to meet the needs and demands of the international business community. At the early stage, these countries enacted International Business Companies Act with no-tax or low-tax regime. Later on, they developed offshore banking, offshore trusts, offshore captive insurance and many other products and services to satisfy the needs and demands of high net-worth individuals and corporate clients.
Bahamas Offshore Banks and Trusts Act and the BVI Offshore Companies Act stand out as success stories. Likewise, Panama has registered several offshore shipping companies and provided them with the Panamanian flag to sail around the world. Antigua and Barbuda introduced internet gambling and it was challenged by the USA, but they won the case at the WTO.
In Europe, similar developments took place in Switzerland, Ireland, Jersey, Isle of Man and Cyprus. These countries and territories have made many innovations to attract foreign investments by registering international business companies and later on by introducing various products and services. Switzerland is known for bank secrecy.
In the Middle East, new legislation was enacted to start on a clean slate. Both in Qatar and Dubai, they were confined to one piece of legislation and managed by Qatar Financial Services Authority and Dubai Financial Services Authority respectively according to regulatory policy and the law. It is very different from the way the English-speaking Common Law countries operate Special Economic Zones.
In Labuan (Malaysia), Dr. Mahatir Mohammed established the Labuan Offshore Financial Authority and introduced lengthy legislation on offshore banking, offshore trusts, offshore insurance, offshore partnerships, etc., so that they are guided by law and not by policy. It has proved to be a roaring success with the participation of a very few but very rich clientele.
In Sri Lanka, the Draft Bill provides the legal and regulatory framework to attract investments to develop the infrastructure of the Port City and also provide offshore products and services to the international business community. This legal framework is one of its kind and conceptually sound, as its scope and content can be expanded by the Economic Commission by way of Regulations, Rules, Orders and By-Laws. Hence, Sri Lanka has adopted the legislative technique of shorter Parliamentary Act and longer Executive Regulations in drafting complex legislation, as advocated by Justice Crabbe at CALC meeting in Ocho Rios, Jamaica (1986).
On reading the draft Bill, I find that there are few gaps and problems relating to legislative drafting. Hence, I wish to say something about legislative drafting before I undertake a constructive review of the draft Bill for the sake of our children and grandchildren.
Legislative Drafting is a form of communication very different to any other form of writing. It has no excess words and no repetitions. It must have clarity and simplicity, so that it could be understood clearly by stakeholders, statute users and investors.
Lord Thring, former First Parliamentary Counsel of the UK, said about 150 years ago that legislation must be drafted in the same way as razors are made to sell. Hence, legislation should be marketable, effective and efficient to achieve the objectives enumerated therein. On this basis, I will now proceed to suggest a few changes to make the draft Bill more attractive to investors and reduce ambiguities, lacunae and grey areas in the capacity of a Legislative Draftsman with 40 years standing in many Commonwealth countries.
REVIEW OF THE DRAFT BILL
(a) Long Title
The long title is too long. It must be clear and concise to capture the broad scope and content of the draft Bill. I humbly suggest the following long title.
to make the Colombo Port City a Special Economic Zone; to establish and empower the Economic Commission to promote, manage, regulate and attract investments to the Colombo Port City by establishing a single window; to attract corporate clients and high net-worth individuals to establish offshore banks, offshore companies, residential condominium units, hospitals and any other product or service; to provide investors with incentives and tax exemptions; to establish International and National Dispute Resolution Centre within the Zone; and for matters connected therewith or incidental thereto.
The preamble to the Draft Bill is not attractive and should illustrate Sri Lanka’s competitiveness by reference to her strategic position in the Indian Ocean. I humbly submit the following opening lines to the preamble.
, Sri Lanka enjoys an enviable strategic advantage in the Indian Ocean as a gateway to West Asia, East Africa, Indian Sub-Continent and East Asia where the Chinese Belt and Road Initiative will impact on the Special Economic Zone along with the participation of other trading powers in this region and beyond …
Part II of the Draft Bill
Part II of the Draft Bill deals with objectives, powers, duties and functions of the Commission. It is an important part and should include a clause to ensure that the prime duty of the Commission is to prevent money laundering and inflow of terrorist financing.
Clause 5(b) should be deleted and be substituted by the following sub-clause, in order to avoid inconsistency with the Board of Investment Act –
(b) attract foreign direct investments to develop the infrastructure of the Port City with multiplier effect on the rest of the country.
It is useful to add immediately after paragraph (2) of clause 6, the following new paragraph (3), in order to allow local legal and accountancy firms in Sri Lanka to play a dynamic role as AGENTS in promoting investments in the Colombo Port City as in other Port Cities. The Offshore Directory provides a List of all agents operating in various jurisdictions. The draft Bill does not appear to provide an opportunity to our lawyers and accountants to play a dynamic role in promoting investments as agents and this should be expressly stated in paragraph(3)
(3) In the exercise, performance and discharge of its powers and duties and functions under sub-section (1), the Commission shall approve agents who may represent offshore companies, offshore banks and other investors at the Commission by being resident in Sri Lanka.
(d) Part III of the Draft Bill
Part III deals with the composition, administration and management of the affairs of the Commission. The Commission has exclusive responsibility in granting registration to offshore banks and companies. A question may arise whether the Commission could register an offshore bank, if the Monetary Board refuses to give a license or classifies the licence into class A, Class B and Class C Banks and impose certain conditions to protect investors as in other offshore financial centres.
The Commission needs to maintain a check-list of all black-listed investors with the assistance of other Special Economic Zones. Otherwise, criticisms will be mounted against the Commission.
The Commission needs to protect the reputation of the Colombo Port City. If something goes wrong, the Colombo Port City will not be a blessing but a curse. Hence, every endeavour should be made to prevent drug money or terrorist funds coming into the Colombo Port City in a devious manner. Such devious methods include numbered accounts and bearer shares. In this day and age, we cannot adopt the policy “Let the robber barons come”, as the international community will be watching us at every step as to how we handle our offshore business.
Lack of proper scrutiny of the investors may lead to a disaster. In Antigua and Barbuda, Robert Allen Stanford obtained a license to operate an offshore investment bank. He built several offices, condominiums and sponsored 20/20 Cricket Tournaments. Later on, he was convicted of a Ponzi scheme and was sentenced to imprisonment by an US Court for a period of 120 years. In 2015 when I visited Antigua, I was shocked to see that a part of the Financial Centre was like a Ghost City.
(e) Part V of the Draft Bill
Part V deals with the Director-General and the Staff of the Commission. There should be a provision in this Part to say that the Director-General and the Staff of the Commission shall be deemed to be public servants under the Bribery Act and the Penal Code.
(f) Part VII of the Draft Bill
Part VII deals with the registration of offshore companies. It is not something new to Sri Lanka. Offshore companies were introduced under the 1982 Companies Act, so that youth in Sri Lanka could be employed as seafarers in these offshore shipping companies. It was a dream of late Lalith Athulathmudali to register offshore shipping companies as in Panama and provide opportunities for our youth to be seafarers, marine engineers and pilots.
Offshore company registration under the Companies Act 1982 and the Companies Act 2007 failed for several reasons. The tax regime was not clearly laid down. The provisions relating to offshore companies were inadequate to deal with issues relating to offshore shipping. A provision should be included in this Part of the Draft Bill to make Regulations relating to offshore companies, especially offshore shipping companies, offshore trusts companies, offshore insurance companies, etc., if we were to develop this concept to its logical ends as a competitive destination in the offshore world.
The Economic Commission provides offshore companies with tax exemptions and fiscal incentives, case by case, and thereafter such exemptions and incentives will be submitted for Cabinet approval. Once approved, President will make an Order and it will be gazetted and be laid before Parliament. Hence, it is likely that mere brass plate offshore companies will not be able to operate in the Colombo Port City.
(g) Part VIII of the Draft Bill
Part VIII deals with offshore banking. The definition of “banking business” in the Draft Bill is too narrow, if we were to attract reputed banks to operate in the Colombo Port City. The definition should include Investment Banking and Islamic Banking. Regulations made under this Part are of paramount importance to avoid crisis situations. Regulations made under Clause 45 must deal with confidential relationships and bank secrecy. It is the hen that lays the golden egg, as secrecy is fundamental to attract offshore banking business.
On many occasions, law enforcement agencies of other countries may require documentation relating to bank accounts. Sometimes they will subpoena such bank officials when they enter their country. (See: USA vs Bank of Nova Scotia (1982). Hence, there should be a mechanism either in the Draft Bill or in the Regulations to deal with such requests by the Commission if there is a prima facie evidence against a particular bank or a personal account.
Constitutionality of the Draft Bill
The purpose of this article is not to deal with the constitutionality of the Draft Bill, as this matter is before the Supreme Court of Sri Lanka. The issues are likely to be very controversial but some claims relating to unconstitutionality are not justifiable and spurious. It is a different ball game as we are dealing with foreigners in regard to their offshore operations and therefore discrimination with nationals may not arise on reasonable differetia.
However, the failure on the part of government to provide the professional bodies an opportunity to review an important Draft Bill of this magnitude can be construed as a violation of the principles of participatory democratic process and the sovereignty of the people as enshrined in our Constitution. South African Constitutional Court in Doctors for Life vs Speaker (2006) invalidated an Act of Parliament as it failed to consult the professional bodies and the Court thereafter recommended to the Legislature to re-enact the same Act after consulting the relevant professional Bodies.
Managing the Colombo Port City by the Economic Commission is an onerous task. The Draft Bill is only “the tip of the iceberg” and many regulations, rules, by-laws, etc,. need to be made to deal with offshore products and services, condominiums, time shares, stock-exchange and hospitals within its area of governance.
It is wrong, unfair and unpatriotic to say that this Draft Bill will convert the Port city into a Chinese colony.ri Lanka will welcome all countries from the East and West to establish international business companies, international banks, hospitals, condominiums, etc., in a strategic location, notwithstanding Rudyard Kipling’s saying “East is East, and West is West, and never the twain shall meet”.
Offshore business is competitive. The developed countries such as the UK and the USA have a “row” with the developing countries for initiating offshore financial centres, as they reduce their tax revenue from high net worth individuals and corporate entities. However, there is duplicity in this matter more severe than the “Geneva process”, as they encourage territories under their control to transfer money to the UK or the USA banks and stock exchanges and impose restrictions on those countries which do not transmit their deposits or invest in stock exchanges in the UK and the USA. Hence, we must be prepared to meet this challenge.
(The writer is a law graduate of the University of Ceylon and holds postgraduate qualifications from the University of Cambridge, UK. He served as UN Legal Expert, Legal Consultant and Legal Draftsman to many Asian, African and Caribbean Countries. He has drafted legislation relating to offshore products and services and handled legal issues on these matters in the Caribbean. Email: firstname.lastname@example.org).
HIRED & FIRED!
CONFESSIONS OF A GLOBAL GYPSY
By Dr. Chandana (Chandi) Jayawardena DPhil
President – Chandi J. Associates Inc. Consulting, Canada
Founder & Administrator – Global Hospitality Forum
The Government of Ceylon had decided to institutionalise organised tourism a few years before I joined the Ceylon Hotel School (CHS). Accepting the recommendations of the international experts who prepared the Tourism Development Master Plan, the government invested on developing the future leaders of the hospitality industry. We were the key beneficiaries of this vision. All CHS facilities, tuition and full-board accommodation, laundry etc. were provided to each student at a highly subsided monthly fee of Rs. 100 (around US$ 25 at that time).
My second month at CHS was better as I gradually learnt to avoid getting into trouble too frequently. Having recovered from the initial culture shock, I started to enjoy everything at the hostel and the school, with the exception of studying. The only major change we had was when our Hostel Warden’s son, who was in our batch, left CHS after a month, much to the disappointment of his father. Apart from that tension, the hostel life was mostly enjoyable.
There were two resident male helpers at the hostel who made tea and breakfast for the students, cleaned the hostel, and distributed our dinner packets and weekend meals which came from Samudra Hotel. When we realized that one of these helpers, Cooray, was good at book-keeping, he became very popular among the students as this was the hardest subject for most of us. Some students arranged for Cooray to give them free lessons on book-keeping throughout our three years at CHS.
Eggs or cigarettes?
At the hostel, we were entitled to only one egg per student every morning. Cooray and his assistant prepared the egg to order for each student in the hostel kitchen. As some of the students attempted to get breakfast eggs twice, the Warden had introduced a control system by getting the eggs distributed to each room in the hostel early morning by one of the helpers. This meant that there were twelve eggs placed on the dining table in the dormitory where I lived with eleven other students. Some students woke up early simply to pick an extra egg when a roommate was absent.
We came to a mutually beneficial agreement with the owner of a small tea house that we passed every morning walking from the hostel to CHS. In exchange for an egg, he gave us a cigarette, which was usually shared by a few students. The more eggs we managed to collect or steal, the more cigarettes we received. One of my batchmates and roommates, Hiran, occasionally stayed at his girlfriend’s nearby house in the night and sneaked back to the hostel in the morning. He was always annoyed that his egg was missing by the time he returned to the hostel. Hiran used to shout every morning, “Cooray, who stole my bloody egg?”. I never told him that it was me.
Hostel and fun
We played all types of outdoor and indoor sports at the hostel – basketball, cricket, football, pingpong, carom, cards, chess, etc. Rugby football and a
thletic teams practiced on the outside fields or on the famous Galle Face green in the early morning. Some afternoons, we went for a sea bath just behind the hostel. I continued to practice Judo three evenings a week at my club in the Colombo Central YMCA. Some evenings, when we were dead broke and bored, we went for
long walks around Colombo or just sat on the front half wall of the hostel in our sarongs and looked at girls walking from a nearby girl’s hostel.
As the government had identified tourism as a sector with major economic growth potential, many concessions including lengthy tax holidays had been offered for new hotel projects. As a result, many new hotels were being constructed in the early 1970s. The first two international hotel brands ever to operate in Ceylon were already on the island – a prominent US hotel chain, Hyatt, who managed the historic Mount Lavinia Hotel, and the largest British hotel chain, Trust House Forte, who managed the brand-new four-star level Pegasus Reef Hotel. Among locally managed new hotels already opened, most prestigious were Bentota Beach Hotel and Browns Beach Hotel.
In development stage, was a four-star level hotel in Colombo which was negotiating a franchise agreement with the largest hotel chain in the world at time – Holiday Inn. There were no five-star hotels in Ceylon at that time, but two five-star hotels were being developed with financial support and 25-year management contracts offered by the government – a 252-roomed InterContinental getting closer to the opening date and a 266-roomed Oberoi, which was due to open in three years’ time. The site for the latter was right in front of our hostel. Seated at the front half wall, at times, we looked at this site and wondered if we would find middle management jobs there when the hotel opened. Some of us actually did so years later.
Owing to peer pressure, we also did stupid things. In the late 1960s and early 1970s, as the free-love movement spread around college campuses in Europe and North America, running around naked or ‘streaking’ became a popular prank. Given the deep-rooted culture in Ceylon, streaking in public was certainly not common or ac
cepted. One evening, a few of us were seated on the front half wall. Out of the blue, one of my batch mates said, “I bet none of you have the guts to streak to Hotel Lanka Oberoi site and back!”. I got up, put my sarong on the ground, ran naked across Galle Road to the Oberoi site, and ran back.
Unfortunately, a couple of cars happened to pass by at the exact same time, with the occupants, including a few ladies in full view of this indecent exposure. We watched them drive straight to the nearby police station to lodge complaints. In fear, we rushed back to the hostel, turned off the lights, and went to sleep. Within a few minutes time, we heard the police visit the Warden to find out what was going on. He was furious, but never discovered the truth. All in all, the hostel life was full of fun, even on days when we were bored, financially broke or broke the law.
The first job
One day, when walking in the back of the house of Samudra Hotel adjoining the CHS, I saw a small notice that said that the Samudra was seeking part-time busboys (table clearers at restaurants/cafes) to work in their restaurant for a few evenings a week. I immediately went to see the Catering Manager of the hotel and expressed my interest. As I had less than two months experience at CHS, he was keen to find a more senior student, but none of them were interested in being a busboy. Some of them were under the unrealistic impression that they would be able to get part-time work in white collar or supervisory positions.
Owing to the lack of interest by other students, I was chosen. My job was to clear tables and assist waiters who served the customers. I particularly liked to work in the evenings when the hotel had well-advertised ‘Sundown Dances’ with live bands. My salary for the evening was Rs 4.00, or around US$1.00 at that time. I liked the free entertainment, experience, and the pocket money.
Hotel Samudra had only ten rooms, which were occupied most of the time. A family of four from the UK were occupying two rooms for a long period, as they were in Ceylon to settle some family matters. The parents were Ceylon-born, but their two daughters, ages 16 and 19, were both born in the UK and were unfamiliar with Ceylonese culture. They both became quite friendly with me. I found their trendy attire and their accents interesting. Similarly, they found my afro hair, big chain with a peace sign, broad belt with a large brass buckle and huge bell bottom jeans, cool and groovy. The 16-year-old was interested in dating me, but it was the 19-year-old who invited me to accompany her to a ‘Sundown Dance’ at my workplace. As I had saved some money from my salary the previous week, and had a night off, I happily accepted her invitation and had a good time. It was my first dance and later that evening, in the dark dance floor I experienced my first-ever kiss.
The Catering Manager of the hotel was a strict disciplinarian. During his evening round to the restaurant and the bar, he was shocked to see me dancing away with a hotel guest. The next day, I was summoned to his office. I was told very clearly that no employee was permitted to enjoy the hotel facilities, and that employees were certainly not permitted to have any personal relationships with hotel guests. I apologised and mentioned that it was my off day. This angered him more, and he yelled, “You are fired!”. He ordered me to return my uniforms immediately and not to show up for work again. My first job in the hospitality industry ended almost as quickly as it began.
Giuliani’s Legal Trouble Is Trump’s Too
To save himself, the President’s former lawyer might have to spill damning secrets.
by Selvam Canagaratna
“You don’t need to be a lawyer to know that when federal agents knock on your door with a search warrant and seize your electronic devices, you’re in big trouble.” wrote Renato Mariotti, Legal Affairs Columnist for Politico magazine. “Ever since that happened to former Donald Trump lawyer Rudy Giuliani on Wednesday, he has tried to downplay the peril he is in, saying whatever evidence is on his phones proves that “the President and I…are innocent.”
But it sure looks like Rud y has a long legal battle ahead of him, and his best defense will likely put him at odds with his former boss. If Trump doesn’t voluntarily protect his one-time counsel, Giuliani may have no choice but to point the finger at his former client. (Their relationship was tested in January when Trump reportedly refused to pay Giuliani for his unsuccessful work trying to overturn the November election results.)
The saga of one-time Trump legal fixer Michael Cohen, who turned on his boss after he pleaded guilty for election finance violations and fraud, is instructive here. Despite Cohen’s assertion that Trump knew of the violations, the President was protected from prosecution while he was in office under Department of Justice guidelines. Now that Trump is a civilian, those guidelines do not protect him, and he has to be concerned about his own liability going forward.
There can be no question that the execution of a search warrant at Giuliani’s residence is a serious step that indicates the criminal investigation against him is far along. Federal prosecutors can’t obtain a search warrant based on a hunch or mere suspicion. They had to present substantial evidence to a federal judge that there is good reason to believe that a federal crime was committed and that evidence of that federal crime was located in Giuliani’s apartment and his electronic devices. It’s significant a judge was persuaded they met that standard.
For that reason, prosecutors likely have a lot of the evidence they need already. During my time as a federal prosecutor, when I sought a search warrant for a subject’s electronic devices, typically I had already obtained some of the subject’s communications or electronic documents from other sources such as co-operators, subpoenas or prior search warrants. I used that evidence to persuade a judge that those communications would also be found on the devices. Even though prosecutors have some communications prior to obtaining electronic devices, the devices can contain more data, including deleted messages, metadata and location information.
In this particular case, one can trust the evidence was solid and substantial given the significant internal scrutiny that this case would receive within the Justice Department. The criminal investigation of any lawyer is a sensitive matter due to the complexities caused by attorney-client privilege, and the DOJ takes special care when investigating a criminal defense attorney, to ensure that the department does not appear to be targeting opponents. Obviously, obtaining a search warrant for the residence and devices of the personal lawyer of the former President would receive even more scrutiny from senior department leadership.
Curiously, the crime for which Giuliani is under investigation — violating the Foreign Agents Registration Act, which requires agents of foreign governments who lobby US officials to disclose their relationship with the foreign government — has been prosecuted only rarely over the decades. But FARA prosecutions spiked during the Trump administration, including the high-profile conviction of former Trump campaign chair Paul Manafort and former Republican finance chair Elliott Broidy. (An associate of former Trump national security adviser Michael Flynn was also indicted for a FARA violation, but the conviction was later overturned.) That group of FARA prosecutions led President Joe Biden to vow on the campaign trail to increase the use of FARA if he were elected, saying there should be no lobbying on behalf of foreign governments outside regular diplomatic channels.
The investigation reportedly centers around Giuliani’s efforts to lobby the Trump administration on behalf of Ukrainian officials and oligarchs who were also helping him dig up dirt on then-candidate Biden and his family during the campaign. At issue, as well, are Giuliani’s efforts to persuade Trump to oust the ambassador to Ukraine, Marie Yovanovitch, whose anti-corruption work was viewed hostilely by those same Ukrainian officials. If Giuliani’s efforts to push Trump to fire Yovanovitch were done on behalf of Ukrainian officials, that could be the sort of foreign lobbying activity that he should have disclosed.
Thus far, Giuliani has tried to hide behind mere technicalities, arguing that he didn’t have a written contract with a foreign official or oligarch. He won’t get away with that in court. What matters is whether he was an agent of a foreign government, not whether his relationship with that foreign government was memorialized in writing. You can’t avoid FARA requirements by failing to write down the details of your arrangement with a foreign government.
Giuliani’s work in Ukraine has been the subject of controversy for two years and was central to the first impeachment probe of Trump’s pressure on the new Ukrainian president. But, according to The New York Times, senior DOJ political appointees in the Justice Department repeatedly tried to block the search warrants, which suggests that the department has had the evidence it needs against Giuliani for some time.
Those prior efforts to slow down the investigation won’t help Giuliani now. If anything, they may eventually work against Giuliani if it is shown that they were done at his urging. Giuliani’s foolish public statements (he claimed erroneously that search warrants can only be issued if there is a fear the evidence will be destroyed) won’t help him either if he is ultimately indicted. At that point, he will need to adopt a defense strategy that may put him at odds with his former client.
Giuliani’s defense will likely be that he was acting completely at Trump’s direction and that his efforts on behalf of the officials and oligarchs was done to curry favour with them on Trump’s behalf, and was done at Trump’s behest and knowledge. Purely from a perspective of trial strategy, Giuliani’s best defense would include testimony from the former President that he knew everything Giuliani was doing and approved of every action he took. That would permit Giuliani’s defense team to argue that since he was ultimately advancing Trump’s interests, he was actually working on behalf of the United States, not Ukrainian oligarchs.
Unfortunately for Giuliani, Trump is not known for sticking his neck out for disgraced former aides, particularly if doing so would involve personal embarrassment or potential liability. Given how Trump distanced himself from former lawyer Michael Cohen when he faced similar peril, it is hard to imagine the former President taking an oath to tell the truth and subjecting himself to withering cross-examination that could embarrass him at best or expose him to potential liability at worst. (Trump’s record of lying under oath in civil suit depositions is well documented.)
The only surefire way for Trump to avoid testimony in the trial of Giuliani would be to take the Fifth, but Trump has repeatedly noted that taking the Fifth makes you look guilty. The only way for him to get out of testifying is for him to suggest that he didn’t really know what Giuliani was doing and didn’t approve of his activities. That would make him worthless for Giuliani as a witness and force Giuliani to point the finger at Trump to save himself. The five-year sentence Manafort received for conspiring to violate FARA gives Giuliani ample incentive to do so, especially since he knows Trump cannot pardon him any longer.
When a lawyer, particularly a famous former federal prosecutor like Giuliani, faces time in prison, the incentive to reduce that sentence is significant. Just like Michael Cohen, Giuliani will have every incentive to help federal prosecutors if it could potentially reduce his prison sentence. That could make the Giuliani prosecution far more consequential than it appears at first glance, given his role in everything from the defense of Trump’s impeachment to the January 6 insurrection.
Without Trump’s protection or financial support, Giuliani’s loyalty would seem to have a limited shelf life.
The transitional 1990s and beyond (JVP-III)
by Rajan Philips
If the 1980s were tumultuous, the 1990s were more transitional, even if not less tumultuous. In this ‘potted’ history, it is not necessary to recount all the details of the 1990s and the first decade of the new 21st century. Suffice it to focus on developments that have had a continuing influence on current events and the farce of 2021. The UNP and the JVP, which more or less came together in 1977, were gone by 1994, after seventeen years of assorted achievements. The UNP would never return to the same pinnacle of power that it seized in 1977. The JVP with a new generation of leaders transformed itself into a democratic political party with mixed results. The first half the decade saw the disintegration of the UNP under the weight of the presidential ambitions of three rival contenders – President Premadasa and his two younger challengers, Lalith Athulathmudali and Gamini Dissanayake. The LTTE took out every one of them in 1993 and 1994.
LTTE violence took off in the 1990s after the JVP had been finished off in the late 1980s. In a telling commentary on that period, Wikipedia lists the names of political leaders, parliamentarians, professionals and political activists who were killed by the JVP, the LTTE, other Tamil groups and the armed forces over three decades of violence. The 1990s began with the assassination of Prime Minister Rajiv Gandhi in 1991 and ended with the killing of TULF MP and Legal Academic Neelan Tiruchelvam in 1999. The old leadership of the TULF, with the exception of M. Sivasithamparam, had been wiped out in the late 1980s. That included TULF leader A. Amirthalingam, a consummate politician and parliamentarian, who started off as a fiery federalist and turned himself into a mellowed separatist.
As the 90s wore on, the LTTE asserted itself as the sole representative of the Tamils. It waged war against the state and its forces but not to capture the state of Sri Lanka but to establish a new state of Tamil Eelam. The JVP’s mission was different, but its ultimate objectives were never clear. Lacking the LTTE’s military prowess, it never seemed plausible that the JVP was serious about capturing state power through violent means. Politically, the JVP swung from its ultra-left attacks on a manifestly leftist government in 1971, to undertaking ultra-right attacks against the most rightwing government in Sri Lanka’s modern history. The left-right cleavage was not part of the LTTE vocabulary.
On the other hand, although it railed against the Indo-Sri Lanka Accord and the presence of Indian armed forces in Sri Lanka, the JVP scrupulously avoided taking potshots at the Indian Army. The LTTE, in contrast, cut its military teeth fighting the Indian army and found common cause with the Sri Lankan government under President Premadasa to fight a common enemy. There was even grudging admiration among sections of the Sinhalese for the LTTE’s choosing to take on the Indian Army. For the record, the Indian Army came to Sri Lanka on the invitation of one Sri Lankan President and left Sri Lanka at the request of the succeeding Sri Lankan President. Hardly the modality for an occupying force. War or peace, Sri Lanka was again left to its own devices.
Illusions of Peace
The second half of the 1990s and the first half of the next belonged to Chandrika Kumaratunga. Her presidency began with a bang of charismatic inspiration but petered through for want of a clear focus and purposeful efforts. Perhaps her singular failure was not single-mindedly moving to abolish the executive presidency as she was universally expected to do. She was also the first and, until Gotabaya Rajapaksa arrived on the scene 25 years later out of nowhere, the only person to become President without previously being a Member of Parliament. Her parliamentary inexperience, untrammeled access to presidential power, not to mention her political ego, all combined to vitiate the promise with which she had led the People’s Alliance to power.
With the benefit of hindsight, we might say that parliament started becoming inexorably poorer from thereon. It is far worse now, in 2021, and for many new reasons. And it has taken a JVP MP, in Dr. Harini Amarasuriya, to take a spirited stand in defense of parliament and parliamentary democracy in Sri Lanka – against presidential authority and media hypocrisy. The ironies of history, you might say, but more on it later.
Chandrika Bandaranaike Kumaratunga (CBK) deserves full marks for starting the peace process during her presidency, but she showed inexplicable naivete in choosing to rely on people from her social circles to take the lead in serious peace mediation. The LTTE was going to be a difficult peace-dance partner anyway, and it required much more than social brokering to make any headway. In the end, the LTTE almost succeeded in assassinating her during her election campaign for a second term in office in 1999.
The main irony of that period was the nasty competition between Chandrika Kumaratunga (leading the SLFP) and Ranil Wickremesinghe (leading the UNP) for leadership in the peace process. It was a total about-turn from previous decades when the two main Sinhalese parties fought one another over who was giving more concessions to the Tamil Federal Party, even though what was on offer was way less than what would be included much later in the 13th Amendment. In any event, the CBK-RW competition over peace turned out to be counter productive both to the peace process and to their respective political calculations.
It may not be wholly accurate to say that presidential politics was the main driver of the peace rivalry, but it is impossible to view the rivalry in isolation from presidential ambitions. All the constitutional changes proposed by the CBK government included provisions to protect her powers, which made it even easier for RW and the UNP to reject the proposals out of hand and even, in one instance, make a bonfire of them right in the well of parliament. As for Ranil Wickremesinghe, his obsession with becoming a President, or at least a presidential candidate one more time (after two attempts in 1999 and 2005), became quite obvious when he deliberately subordinated every initiative of the yahapalanaya government (2015-2019) to that single obsession.
Back during his rivalry with CBK over peace initiatives, Ranil Wickremesinghe stunningly turned to the LTTE to strike a counter peace partnership to CBK’s peace partnership with the TULF. I am not aware of any public recounting of the mediation that brought RW and the LTTE together in a peace initiative. But objectively, it fair to surmise that Ranil Wickremesinghe reached out to the LTTE as a counter to CBK’s peace alliance with the TULF. What was fairly well known throughout the JRJ presidency was that President Jayewardene cunningly kept not only the TULF but also the JVP from joining forces with the SLFP/Left opposition at that time. In the end, there was no ultimate benefit to anyone from JRJ’s Machiavellian politics. The presidential house he built so adroitly would be eventually lost to the UNP. Now it seems it is lost forever. And it will be for other more upstart aspirants as well.
As JRJ’s successor, President Premadasa took a different tack, reaching out to the LTTE to get the Indians out. We know how that tack or track ended. The TULF that was left hanging, or what was left of its depleted leadership, broke with the UNP and turned to Chandrika Kumaratunga and the People’s Alliance for a new kick at what had become the proverbial viable solution, while Ranil Wickremesinghe modified the Premadasa approach to re-engage the LTTE with Norwegian insurance. To their credit, Chandrika Kumaratunga and Ranil Wickremesinghe ‘fought’ over how to make better peace with Tamils, rather than about waging a more brutal war with the LTTE. They both admitted that the Sri Lankan state had failed in the building of its nation and were committed to creating a plural and inclusive polity. While their political spirits were willing their presidential flesh led them astray.
And their peace-fight was nasty. They could not work together even when they were forced to cohabit as President and Prime Minister between 2001 and 2004. Ranil Wickremesinghe, as Prime Minister, dashed everyone’s expectations of peace dividends by giving, not for the last time, free rein to corruption in government. For her part, and in what she would later admit to being among her more grievous mistakes, President Kumaratunga dismissed the Wickremesinghe government in 2004 (which she had the power to do under the pre-19A Constitution, unlike Maithripala Sirisena who flouted his own 19th Amendment in October 2018), dissolved parliament and won the parliamentary election in April 2004 with provisional support from the JVP.
The results of the April 2004 parliamentary election gave false hopes to President Kumaratunga and the JVP (that won 39 out of 105 UPFA seats in parliament, its highest on record), relegated Ranil Wickremesinghe to the opposition backwaters for the next ten years, and signaled the emergence of Mahinda Rajapaksa as the next presidential candidate from the true south. The country went through the tsunami devastation in December 2004, but that did not help the political leaders getting any wiser about working together. The Supreme Court abandoned President Kumaratunga when it rejected her bid to extend her second term by one year. Ranil Wickremesinghe even thought that Chief Justice Sarath Silva was helping him for not impeaching him earlier!
Those who had serenaded CBK during her rise lost no time in leaving as she declined. Mahinda Rajapaksa became the SLFP-UPFA candidate by acclamation. He reached a new agreement with the JVP. The unkindest cut of all was delivered by the LTTE to Ranil Wickremesinghe who thought that it would be a no contest. Mahinda Rajapaksa won the November 2005 presidential election by the squeakiest of margins, while Tamil voters in the north were ordered to stay home. Basil Rajapaksa’s familial prophesy that there will be a President from the south was finally fulfilled. But there were other dynamics at play.
Illusions of Restoration
In my last installment published two weeks ago (April 25), I alluded to Mahinda Rajapaksa becoming the presidential beneficiary of a new strand of Sinhala Buddhist nationalism fueled by the Jathika Chinthanaya school of thought. The school of thinking that JC advocated has not universally been accepted in Sinhalese political society. At one level, the electoral victories of Chandrika Kumaratunga (PA) and the partial successes of Ranil Wickremesinghe were moments of political pushbacks to the creeping influence of JC thinking. At another level, both the SLFP and the UNP were forced to come to terms with ‘JC forces’ and include them in their political alliances often on their (JC’s) terms.
The presidential system and proportional representation in parliamentary elections facilitated the emergence of alliance politics. The era of programmatic united fronts of political parties was gone. Serious political programs gave way to lawyerly Memorandums of Understanding. Multiple parties with bilateral/multilateral MOUs could come together under an umbrella alliance for contesting elections. The April 2004 parliamentary elections were the breakthrough election for the new Sinhala Buddhist nationalist organizations.
The Jathika Hela Urumaya (JHU), the most electorally successful offshoot from the JC school, won nine seats in the election, all won by Buddhist Monks. The JVP which had been courting JC ideologues and followers from the 1980s, was part of Chandrika Kumaratunga’s alliance (UPFA) and won 39 seats. It was the JHU that successfully challenged President Kumaratunga’s attempt to extend her second term limit in the Supreme Court in August 2005. JC’s political consummation came within months, with the victory of Mahinda Rajapaksa in the November presidential election. That it came with support from the not so hidden hand of the LTTE did not dampen the significance of the moment. Mahinda Rajapaksa was recognized as the most authentic Sinhala Buddhist political leader since independence.
In terms of political analysis, the victory of Mahinda Rajapaksa has been described as the restoration of the linkage between the Sri Lankan state establishment and the political hegemony of Sinhala Buddhist nationalism. The linkage had apparently been ruptured since July 1987 when JR Jayewardene and Rajiv Gandhi signed the Indo-Sri Lanka Accord. Looked at in another way, the state of Sri Lanka which has traditionally been accused of alienating the Tamil and Muslim minorities, would seemed to have found a way to alienate even the Sinhalese majority.
And the restoration that was apparently achieved with the victory of Mahinda Rajapaksa in 2005, has not turned out to be as consequential as anticipated. To wit, the Indo-Sri Lanka Accord and the Thirteenth Amendment that it created have survived two terms of Mahinda Rajapaksa presidency and may yet survive the first term of the Gotabaya Rajapaksa presidency. At the same time, a full restoration of the linkages between the state of Sri Lanka and all its ‘peoples’ will require a more sensitive and nuanced understanding as well as appreciation of the nationalist compulsions of the Sinhalese, Tamils and the Muslims. Anything less can be nothing more than a farce. (Next week: The farce of 2021).
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