by C.A. Chandraprema
The draft of the 20th Amendment has now been Gazetted. Formulating a completely new constitution instead of making interim amendments to the existing one, is undoubtedly what most prefer. However, there are one or two constitutional issues which cannot wait until a new constitution is drafted and have to be attended to immediately. The first such issue pertains to a matter that has gained very little public attention but was exclusively highlighted in this column in July this year. This has to do with the composition of the all-important Constitutional Council which has the final say in making appointments to high state positions such as that of the Attorney General and Judges of the Supreme Court and independent commissions such as the Elections Commission and the Public Services Commission.
The Constitutional Councils appointed in 2015 and 2018 were aberrations because the yahapalana government made up of the UNP and the SLFP and the yahapalana opposition made up of the TNA and the JVP shared all the positions on the Constitutional Council among themselves. The CC established in 2018 is set to continue till October 2021. If this issue is not addressed immediately, the defeated yahapalana opposition will have complete and total control over the process of making appointments to important state positions and independent commissions until October 2021.
According to the 19th Amendment, the Constitutional Council is made up of the Speaker (Chairman) the Prime Minister, the Leader of the Opposition, one Member of Parliament appointed by the President, five persons appointed on the nomination of both the Prime Minister and the Leader of the Opposition of whom two persons shall be Members of Parliament, and one Member of Parliament nominated by agreement of the majority of the Members of Parliament belonging to political parties, other than the respective political parties to which the Prime Minister and the Leader of the Opposition belong.
Yahapalana Constitutional Council
Accordingly, the present Constitutional Council is composed of the following persons. Speaker Mahinda Yapa Abeywardana (Chairman), Prime Minister Mahinda Rajapaksa, Opposition Leader Sajith Premadasa, President’s nominee Mahindananda Aluthgamage, nominees of the PM and the Opposition Leader R. Sampanthan, Thalatha Atukorale, Naganathan Selvakumaran and Javed Yusuf. Two seats are vacant. Bimal Ratnayake who represented the smaller political parties in Parliament was defeated at the Parliamentary election and has not been replaced, and Jayantha Dhanapala who resigned from the CC has not been replaced. If we assume for the moment that the two vacancies will not be filled, we see that of the remaining eight members, no less than five are yahapalanites and only the Speaker, the PM and the President’s nominee represent the ruling SLPP led coalition.
R. Sampanthan, Thalatha Atukorale, Naganathan Selvakumaran and Javed Yusuf are on the CC by virtue of the fact that they were appointed in 2018 by the yahapalana government and yahapalana opposition working in collusion. Sampanthan was appointed to the Constitutional Council in April 2019 as a concession granted to him when Mahinda Rajapaksa became the Opposition Leader. Thalatha Athukorale was appointed to the CC earlier in 2018 as one of the five nominees who are appointed jointly by the PM and the Opposition Leader. Now that they have been re-elected to Parliament, they are serving out the remainder of their three year fixed term which they are entitled to under Article 41A(8) of the Constitution. The CC is not a Committee of Parliament but a body that stands outside it even though it is made up mostly of parliamentarians. Members of the Constitutional Council appointed in 2018 who have fixed terms continue to function even if Parliament is dissolved and a new Parliament is convened and the Members of Parliament who survive the election can serve out the remainder of their terms in the new parliament.
The nominee on the CC representing the President was Mahinda Samarasinghe. He too had a fixed three year term under Article 41A(8) and he has been re-elected to Parliament, but he has been replaced by Mahindananda Aluthgamage. The only way such a change can be made would be on the grounds that the President has changed so the individual representing the President on the CC also has to change. However no provision has been made in the Constitution to make such a change and one has to go by the wording of Article 41A(1)(d) which states that the CC has to have one Member of Parliament appointed by the President. By implication, such an appointee cannot be the person who was appointed by the former President.
But there’s no such luck when it comes to the five members of the CC appointed jointly by the Prime Minister and the Leader of the Opposition, two of whom should be MPs. All these appointees have fixed three year terms under Article 41A(8) and they cease to be members of the CC only if the member resigns or is removed from office on both the Prime Minister and the Leader of the Opposition forming an opinion that such member is physically or mentally incapacitated and is unable to function further in office or is convicted by a court of law or if he loses his civic rights. There is no provision for such an appointee to be removed from the CC when the PM and the Opposition Leader changes. Thus Thalatha Athukorale and Sampanthan continue to sit on the CC. The majority of MPs belonging to the smaller political parties in Parliament to which neither the PM nor the Leader of the Opposition belong are yahapalanites and if they nominate a replacement for Bimal Ratnayake, that nominee will be another yahapalanite.
The replacement for Jayantha Dahanapala, since it will have to be made jointly by Prime Minister Mahinda Rajapaksa and Opposition leader Sajith Premadasa, may be a neutral person but it will not help to correct the imbalance in the CC. There will be just three SLPP members and one neutral person as against six yahapalanites. There is the danger that the yahapalanites on the CC will stuff the so called independent commissions full of yahapalanites as they did in 2015 and 2018, thus subverting the people’s mandate of 2019 and 2020. Under Article 41B (4), if the President does not appoint the members of the independent commissions recommended by the Constitutional Council within 14 days, they will be deemed to have been appointed automatically at the end of that period. It takes little imagination to see the immediate danger posed by these provisions.
The Elections Commission will have to be reappointed in November this year, and it’s imperative that the present Constitutional Council be abolished by then. The 20th Amendment seeks to replace the present Constitutional Council with a five member Parliamentary Council made up of the Prime Minister, the Speaker, the Leader of the Opposition, a nominee of the Prime Minister, who shall be a Member of Parliament, and a nominee of the Leader of the Opposition, who shall be a Member of Parliament.
The President’s defence responsibilities
Another situation that should not be allowed to persist until a new constitution is drafted is the question whether the President can hold the defence portfolio or not. The drafting of a new constitution may take at least a year given some of the contentious issues like electoral reform that will have to be negotiated. There is no express prohibition in the 19th Amendment on the President holding portfolios. The supposed prohibition is by implication. Before the 19th Amendment, there used to be Article 44(2) in the Constitution which stated that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister. That provision was dropped when the 19th Amendment repealed and replaced Chapter Eight of the Constitution. There was also a transitional provision in the form of Section 51 of the 19th Amendment Act which stated that Maithripala Sirisena, so long as he held office as President, may assign to himself the subjects and functions of Defence, Mahaweli Development and Environment.
The disappearance of old Article 44(2) and Section 51 of the 19th Amendment Act taken together are supposed to imply that the Presidents coming after Maithripala Sirisena cannot hold any portfolio – not even the defence portfolio. Yet as the Constitution stands even after the 19th Amendment, the President is the Head of the State, the Head of the Executive, Head of the Government and Head of the Cabinet of Ministers in a situation where Article 4(b) states that the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President. We see that Article 46 of the 1946 Constitution named certain ministries that had to be established such as the Ministry of Justice, Ministry of Finance and the Ministry of Defence and External Affairs. Our present Constitution does not name any ministries that have to be established.
According to our Constitution, the executive is made up of the President and the Cabinet and the President appoints the secretaries to all ministries. So long as the President and Cabinet are of one mind, it may be possible to have a defence ministry run by its Secretary without a Gazetted Defence Minister as such. In such an instance, the defence secretary will be acting under the instructions of the President and the Cabinet. The only hitch will be when the defence minister is required by legislation to sign certain documents in his capacity as the minister of defence or the minister in charge of a certain function. But such areas can be assigned to the State Minister of Defence and theoretically, a patchwork arrangement of that sort can be continued until a new constitution is passed.
But it’s a moot question as to whether it is advisable to carry on in such a manner for an extended period of time especially with regard to a matter as important as defence. The SLPP won the presidential and parliamentary elections on a public security and law and order ticket. Minister of Education Prof. G.L.Peiris has been addressing public gatherings arguing for the immediate rectification of this situation which has cast doubts on the President’s ability to hold the defence portfolio. This together with the Constitutional Council issue highlighted earlier can be named as the two issues that cannot wait until a new Constitution is drafted and needs to be resolved as soon as possible. The draft 20th Amendment has sought to resolve the defence ministry issue by restoring the old (pre-19th Amendment) Article 44(2) which stated that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister.
Issues that can wait
In the medium to long term, the most dangerous aspect of the 19th Amendment is the total prohibition on the dissolution of Parliament until the lapse of four and a half years unless a resolution to that effect is passed by Parliament with a two thirds majority. Before the introduction of the 19th Amendment, the old Article 70(1) of the Constitution stated that the President could dissolve Parliament at his discretion, and the only restriction on this power was if the last parliamentary election had been held as a consequence of the President having dissolved Parliament at his discretion, he could not dissolve the next Parliament until the lapse of one year from the date of that Parliamentary election. Moreover, under the old Article 70(1), Parliament could dissolve itself by a resolution passed by a simple majority and if the government cannot get the budget passed after two attempts, the President was mandatorily required to dissolve parliament.
But now, we have a Parliament that cannot be dissolved for four and a half years regardless of anything that may happen within Parliament, even if the government suffers repeated defeats at no confidence motions, if their budgets or statements of government policy are repeatedly defeated, there is no provision to dissolve Parliament to hold fresh elections unless a motion is passed by a two thirds majority in Parliament requesting dissolution. This can lead to a paralysis of the entire government. However, since the present government has an overwhelming majority in Parliament, rectification of this issue can wait till the new constitution is drafted, but since the rectification of this needs only the simple measure of repealing the yahapalana Article 70(1) and restoring the old article 70(1), there is perhaps no harm in doing that through the interim amendment.
One of the provisions in the 19th Amendment that had a serious impact on the yahapalana government was the diarchy that it created by Article 43 which said that the President could at his discretion determine the number of Cabinet Ministers and the assignment of subjects and functions to such Ministers, but was required to mandatorily consult the Prime Minister when appointing MPs to those ministerial positions. Thus the Prime Minister became the effective appointing authority of Ministers. Wimal Weerawansa described this as a situation where the President was wearing the shirt and the Prime Minister the trousers with neither of them having a full set of clothes!
For any political party other than the SLPP, this provision would have had serious consequences. But the SLPP will not have any issues so long as the Rajapaksa brothers hold those two positions. The recification of this issue could have waited till the new constitution was drafted, but the 20th Amendment seeks to rectify this by restoring the old Article 44(1) as it stood before the 19th Amendment – which will give the President the power to determine the number of Cabinet Ministers and the assignment of subjects and functions to such Ministers and to appoint MPs to those positions after consulting the PM if he deems such consultation to be necessary.
There are other issues too that could have been put off till the new constitution is drafted, such as lifting the yahapalana ban on dual citizens contesting elections, and reducing the age limit for contesting presidential elections. Provision also has been made in the 20th Amendment to restore the urgent Bills procedure whereby if the Cabinet of Ministers certifies a Bill as urgent, the need to gazette the Bill 14 days before it is presented in Parliament can be dispensed with and the President can write to the Chief Justice, requesting a special determination of the Supreme Court as to whether the Bill is inconsistent with the Constitution and the Supreme Court is required to deliver their determination within 24 hours or a period not exceeding three days as specified by the President.
One area where the new Article 122 differs from the old (pre-19th Amendment) Article 122 is the inclusion of a new sub-Article 122(3) which specifies that Bills to amend the Constitution cannot be deemed to be urgent Bills. Another significant change to be made by the 20th Amendment is the dropping of the limit of 30 cabinet ministers and 40 non-cabinet ministers and deputy ministers introduced by the 19th Amendment. We see from the foregoing that what the 20th Amendment aims at is restoring the status quo ante, as things stood before the 17th, 18th and 19th Amendments. Some of these obviously can wait until the new constitution is drafted, but the first two issues mentioned in this column obviously need immediate attention. Going by the public pronouncements of members of the Cabinet Sub-committee on constitutional reform, such as Prof. G.L.Peiris, they too have prioritized certain areas such as the defence ministry issue which has wide ramifications for public security, the urgent Bills issue, and the Constitutional Council issue.
A post-mortem of Gotagogama
By Uditha Devapriya
Sri Lanka is still living with the consequences of Gotabaya Rajapaksa’s presidency, partly because his government has not left and partly because resistance to it, though repressed, is still alive. Under Ranil Wickremesinghe the State has asserted its will and imposed it on those who disagree with it. It has arrested protesters without as much as a blink of an eye from those who walked to Gotagogama. Today their (mostly middle-class) supporters have relapsed into silence, seemingly getting on with their lives.
When protests began in early March, I predicted that sooner or later, middle-class calls for IMF reforms would sour. While a section of the middle-class still bats for those reforms, the lower middle-classes have been so battered by price hikes and tariff revisions that they have wavered. Still, even they couch their hatred of such reforms in the rhetoric of resistance to political corruption. Sri Lanka’s middle-classes do not appear politically mature enough to take the leap from that sort of resistance to opposition to neoliberal reforms.
Sri Lanka’s middle-classes tend to sway from one extreme to another: from wholehearted support for the yahapalana regime, for instance, they shifted to Gotabaya Rajapaksa and his brand of Bonapartist nationalism. They are also so disenchanted with local institutions, particularly political institutions, that they believe any alternative is better than what we have. This explains their newfound love for the IMF, and their inability to translate their hatred of IMF reforms into a coherent critique of those reforms. Instead they have directed the brunt of their anger, not on the institution demanding such reforms, but the institutions enforcing them. This is a curious contradiction, and it needs examining.
The protests against Gotabaya Rajapaksa’s government did not begin in March and April. One of that government’s biggest blunders was its fertiliser policy. As Dayan Jayatilleka has pointed out, the policy cost the regime its peasant heartland, a loss it could never hope to regain. The peasantry and the (predominantly Sinhala and Buddhist) middle-classes made up the biggest pillars of support for the government. It was these constituencies that gave the SLPP a two-thirds victory in 2020. The government had no better strategy for losing its momentum than losing these bases. This is what it began doing in 2021.
The class composition and preferences of these groups have not been seriously examined. The peasantry had been hit hard by the import bans. Yet what caught the headlines wasn’t farmer protests, but corporate opposition to those bans: in effect, the big estates and farms that would lose the most from the government’s policy. The outcome of such policies was to bring together a diverse array of class interests, which would otherwise not have united and coalesced into a resistance movement. The anger of the farmers was apparent enough, but it was left to corporate and middle-class elements to articulate it fully.
For obvious reasons, attitudes to neoliberal economic reforms differ from social class to social class. While the rupee was artificially pegged, and petrol was still going for less than 200 rupees a litre, the lower middle-classes felt no need to oppose such reforms, even as they were being imposed on the peasantry and the urban poor. When IMF reforms finally saw the light of day, they changed their tune. It was this that led to the peak in the protests between June and August. Once petrol prices hiked and shortages ensued in late June, the middle-class felt it had nothing to lose. So they walked to Gotagogama.
I have mentioned several times, in this column, that the ideological preferences of the bulk of the demonstrators at Gotagogama did not bear out progressive-liberal perceptions of the protests and the protesters. The UN Human Rights Council’s situation report on Sri Lanka, titled A/HRC/51/5, implies that the bulk of these protesters demanded accountability from the government. True as this may be, the document does not capture the essence of those demands. The reality is that middle-class perceptions of accountability, and transparency, differ considerably from liberal progressive definitions of such concepts. To put it bluntly, the call at Gotagogama was not so much the establishment of institutional mechanisms, as the restoration of fuel and gas supplies and uninterrupted electricity.
I am not suggesting here that the protests were regressive and reactionary, though at times they were almost that – particularly when their opposition to the political leadership in the country took on homophobic dimensions, as I personally witnessed on July 12. Yet, again as I have mentioned in this space, the Gotagogama demonstrations never fitted in with liberal progressive narratives that framed them as a mass, courageous, youth-driven and youth-led uprising. The youth themselves, who formed the crux of the protests, hardly ever bore out such stereotypes. Their class composition aside, the racial dimensions of the youth were so evident that one would have to be wilfully blind to ignore the cynical commentaries on the protesters authored by sections of Tamil civil society.
My point is that these divisions were never appreciated or understood when the protests gained steam. Had we taken stock of them, they would not have fragmented so soon. The middle-class’s confused attitude to IMF reforms should inform us that they are, as yet, not mature enough to take on the task of critiquing local and international institutions, including political institutions. Their resistance to power and privilege is couched in populist calls for personality and system changes. The task of the Left, particularly the New Left (the JVP and the FSP), is to transform these popular calls into a larger, broader programme, one that can carry the protests forward and ensure a leftward tilt within the middle-class. There are signs that the New Left is doing this. But more needs to be done. Much more.
The writer is an international relations analyst, researcher, and columnist who can be reached at email@example.com
The Draft Resolution: Can the UN help with Systemic Corruption & Economic Crimes?
By Sanja de Silva Jayatilleka
At the informal consultations held on September 16, it is reported that the government had objected strongly to the Resolution now being drafted on Sri Lanka in Geneva, while however, proposing amendments to dilute it. This latter move indicates that its reading of the balance of support at the Council is that the resolution could be adopted at a vote, despite GoSL’s rigorous objections. The draft resolution now in the public domain includes many references to Sri Lanka’s “on-going economic crisis” and proposes ways to prevent its repetition.
In an Operative Paragraph (paragraphs that calls for some action), it “Calls upon the Government of Sri Lanka to address the ongoing economic crisis and help ensure it does not happen again, including by investigating and, where warranted, prosecuting corruption, including by public and former public officials, and stands ready to assist and support independent, impartial, and transparent efforts in this regard”.
The phrase “Calls upon” is the strongest language that can be used in the operative paras, which differentiates it from other language such as “urges”, “encourages” or “expresses concern”.
Noteworthy is the offer of the Office of the High Commissioner which “stands ready” to support a properly constituted investigation on corruption. With the resources at its disposal, including the Special Rapporteurs and other expert mechanisms, it is an offer that such an investigative body should avail itself of. Regardless of Sri Lanka’s response to the offer, the Resolution itself will give the Office of the High Commissioner the authority to gather evidence of such violations as part of its Sri Lanka Accountability Project:
“Requests the Office of the High Commissioner to enhance its monitoring and reporting on the situation of human rights in Sri Lanka, including …on the human rights impact of the economic crisis and corruption, and to present oral updates to the Human Rights Council…”
This gathering of evidence on Sri Lanka, which has been ongoing for several months, including the already completed uploading of the various existing databases of human rights violations to a single location at the OHCHR, will include data on corruption and other violations of economic rights including corruption. The draft Resolution bases its recommendations on its observation of the deteriorating economic situation in Sri Lanka which it describes in one of its paragraphs:
“Expresses concern at the human rights impacts of the economic crisis, including as result of increased food insecurity, severe shortages in fuel, shortages in essential medicines and reductions in household incomes, while stressing the need to promote and protect the rights of the most marginalized and disadvantaged individuals, including daily wage earners, children, older persons, and persons with disabilities.”
This is pretty comprehensive and accounts for the major violations of the implicit social contract between the citizens and the government. It is beyond question that “food insecurity” was not due to a dearth of dollars. Anyone with a TV saw how many farmers cursed the government on the evening news well ahead of the actual event, very clearly articulating that the country will be short of food following the new fertilizer policy, and the false promises of a magical organic variety, not to mention cash compensation for any shortfall. Their warnings and their curses were more explicit than any resolution could be, but were ignored.
“Severe shortages of fuel” had severe consequences, including several deaths while hapless citizens stood in queues, some including fishermen and farmers, three wheel-wheel drivers et al, unable to practice their livelihoods, leading to “reductions in household incomes” or eliminating the opportunity for any income at all in some cases. As the parliamentary COPE committee found out, the reason for the shortages had more than one reason, uncovering corruption of major proportions over many years. That the prorogation of Parliament made the COPE reports not actionable cannot make the citizens not see the proceedings and its revelations.
More pitifully, “shortages of essential medicines” has its own very unsavory story attached. A private TV station reported this week those responsible for the procurement of essential medicines were clearly unaware of the medicines that were in short supply at the various hospitals nor able to provide them on time. It was reported that an elaborate IT system for efficient procurement was in the making for five years at great cost and yet was incomplete at the end of that period and therefore, a new system was now in the process of being constructed.
This is hardly a surprise when the public was treated to the spectacle only a few months ago of an entire database of approvals for procurement of medicines, especially created according to government specifications mysteriously got wiped out completely, with no back up of that information! That this was in the aftermath of public concern over corruption during imports of Covid related medical supplies, didn’t do anything to reassure the long-suffering public that corruption which seemed to have permeated the entire system had any chance of being arrested. Instead, arrests are on-going of those who dare to protests against these practices which brought the country to bankruptcy adding to the already miserable lives of the people.
The arrests of some protesters are made, with the full knowledge and concurrence of the President of the country, under the Prevention of Terrorism Act. The Resolution takes due note of this situation:
“Also expresses concern over other human rights developments since April 2022 including violence against and arrests of peaceful protestors…”
“Takes note of the introduction of amendments to the Prevention of Terrorism Act in March 2022, that detentions under this legislation continue to occur…”
There has been a massive public outcry against the recent arrests under the PTA of student activists who were prominent participants of the Aragalaya against the government. These arrests are seen by the public as being politically motivated and insidiously so, as the economic crisis deepens.
Surely, the government cannot think that it is part of their counter-terrorism strategy to arrest these protesters, where there have been no victims of terrorism. The usual excuse trotted out is the recent burning of the private residences of parliamentarians as the reason for the use of the PTA convinces no one, because these student activists were not by any stretch of the imagination implicated in those acts.
There is another zero draft, this time in the ‘thematic’ category, at the current session of the UN Human Rights Council on Terrorism and Human Rights. The draft includes the following:
“Notes with concern the measures that undermine human rights and the rule of law, such as the detention of persons suspected of acts of terrorism in the absence of legal basis for detention and due process guarantees, the use of torture, the unlawful deprivation of the right to life and other human rights and fundamental freedoms, and urges States to review the grounds of detention and to respect the rights to equality and non-discrimination in the administration of justice, and to a fair trial, as provided for by international law, including international human rights law, and, as applicable, international humanitarian law and international refugee law” and “Stresses the importance of ensuring access to justice and accountability, and calls upon States to ensure that any person who alleges that their human rights or fundamental freedoms have been violated by measures taken or means employed to counter terrorism or violent extremism conducive to terrorism has access to justice, due process and an effective remedy, and that victims of human rights violations and abuses receive adequate, effective and prompt remedy and reparations, which should include, as appropriate, restitution, compensation, rehabilitation and guarantees of non-repetition as a fundamental basis of any strategy to counter terrorism and violent extremism conducive to terrorism.”
Perhaps Sri Lanka’s Commission of Human Rights will take note.
IMF and Human Rights
The Resolution on Sri Lanka welcomes the staff level agreement between the IMF and the government. Yet in the Sri Lankan parliament, the government claims that there is no agreement yet, even though it may come as news to the IMF team which concluded their discussion in Colombo recently with a media briefing. Perhaps the Resolution ought to hold off on congratulating the government on that one since the government itself is claiming that they have failed to reach an agreement yet.
The Opposition has continued its calls for a transparent process in which parliament is given access to the contours of what was widely believed was a staff level agreement. The government is resisting those calls, with the Speaker claiming that the President is not in possession of any signed agreement which when finally presented to Cabinet, will be discussed in parliament. This is filibustering, clearly to postpone revealing more bad news to the people under severe economic strain. Why would the government care if not for electoral reasons?
This whole pile of economic garbage fell on the people due to government mismanagement, inefficiency and corruption. And yet, these people who couldn’t manage to steer the country safely through the recent storms are hoping to design a recovery package without any review by parliament, in time to prevent further exacerbation.
This administration has been referred to as the ‘40 thieves’ in the story of Ali Baba on more than one occasion on social media, to popular cheers, showing little confidence in their ability to implement any such plans, including privatization of state enterprises. They are sitting atop a massive public service for sure. Given the irregularities in the government financial statements discovered by its own Auditor General, I’d suggest that they move the vast majority into the Auditor General’s Office, empower him to prosecute the criminally corrupt, also using the Office of The High Commissioner for any resources and training, and more importantly, start proceedings to recover the stolen assets with the help that they have offered in the resolution. Sri Lankan people have every reason to critically support this draft resolution, for most of its content.
Are economic crimes none of their business?
By Sanja De Silva Jayatilleka
Foreign Minister Ali Sabry, addressing the United Nations Human Rights Council (UNHRC) in Geneva last week said in no uncertain terms that any reference to ‘economic crimes’ was beyond the Human Rights Council’s mandate:
“It is observed that the UN Acting High Commissioner for Human Rights has tabled a report on Sri Lanka that makes extensive reference to economic crimes. Apart from the ambiguity of the term, it is a matter of concern that such a reference exceeds the mandate of the Office of the United Nations High Commissioner for Human Rights (OHCHR).”
To be fair, it is probably the new Foreign Minister’s first time at the Council. The Council has thus far been primarily concerned with matters such as the conduct of the armed forces during the last stages of Sri Lanka’s war with the LTTE.
The term ‘Economic Crimes’ was included in relation to Sri Lanka at the Council for the first time, and introduced in the report of the High Commissioner on the Human Rights Situation in Sri Lanka on the first day of the ongoing sessions. It was an unfamiliar allegation, and rightly so, up until now.
The UNHRC Mandate which was challenged by Foreign Minister Sabry, was decided by the well-known United Nations General Assembly Resolution 60/251. The Preamble of the Resolution recalls in addition to the Universal Declaration of Human Rights, “the International Covenant on Economic, Social and Cultural Rights and other human rights instruments and reaffirms that all human rights are indivisible, interrelated, interdependent and mutually reinforcing.” It also states that they should be treated in an “equal manner”, “on the same footing” and “with the same emphasis”.
In the Operative paragraphs, UN Resolution 60/251 emphasizes the point further by stating that the Council is responsible for all human rights “without distinction of any kind“.
It was clearly established at the very inception of the Council that Economic, Social and Cultural Rights were human rights and it had the responsibility to review any violations of those rights with equal concern as that of other human rights. Sri Lanka is a state party to the International Covenant on Economic Social and Cultural Rights. The Covenant recognizes that:
“In accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights…”
I’d say the UNHRC and the OHCHR added two and two together and came up with an accurate four, in deciding that economic rights are definitely within their purview and indeed that they were obliged to review any violations of the said rights.
If it looks like a crime…
But has a violation of that right occurred? The bulk of the Sri Lankan public would give a resounding yes, never mind the technicalities. If things don’t improve, they are likely to do so louder and clearer in the form of an ‘Aragalaya’ before long. Regular repression and arrests of protesters have done little to discourage a people who have seen their livelihoods disappear together with their rice and vegetables due to government policies. No legalistic quibble will prevent a starving people from holding their leaders accountable for the povertization of the country (not to mention bankrupting its Central Bank) in the midst of regular warnings by economic experts.
The Sri Lankan state knew of its commitment internationally to ensure the welfare of the people and the upholding of all their human rights when it signed up to the Covenant on Economic, Social and Cultural Rights.
Article 11 of the Covenant starts with the recognition of the citizens’ economic rights, especially right to food:
“1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:
(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;
(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.”
However, under the Gotabaya Rajapaksa presidency, production methods were not improved but destroyed. An extremely consequential decision such as the overnight and complete banning of chemical fertilizer in a country that had farmed with chemical fertilizer for decades, whose farmers had been encouraged to do so by successive governments, whose soil was long oriented for farming in that manner, surely counts as an economic crime especially when the effects of this and other policy decisions have resulted in malnutrition among a large segment of the children of the country while a large percentage of the adult population are unable to afford three meals a day.
Speaking to ABC Australia, a UNICEF representative had said of Sri Lanka that “seven out of 10 families are cutting down their food intake to mitigate the crisis… Accordingly, those who were having three meals had decreased to two, while those who were eating two meals had declined it to one. “
UNICEF had further stated that “1.7 million children in Sri Lanka…are at risk of dying from malnutrition-related causes…While Sri Lanka has the second-highest rate of acute malnutrition among children under five-years in South Asia, at least 17% of children are suffering from chronic wasting, a disease that carries the highest risk of death.”
There’s a hole in the Budget
This sudden plunge wasn’t due to a great flood, a drought, a war, or freak accident like a meteor hitting us dead centre. We were a middle-income country, until several policy decisions, now internationally described as economic crimes, were perpetrated on the people. This is certainly no international conspiracy to discredit Sri Lanka. If only the allegation had no basis in fact! All we would have had to do then is summarily deal with the Office of the High Commissioner and the Council in the strongest terms and go back to our middle-income lives.
Lived experience currently dictates otherwise. A once thriving country is now avowedly bankrupt. One has only to review the Auditor General’s report on Public Debt control 2018-2022 to confirm that the government was in dereliction of its financial responsibilities in addition to other misdeeds, such as corruption.
For a while, the government didn’t even know how much they owed their international creditors, according to the international press. The Auditor General’s report tabulates several millions in hidden debts which were not properly recorded in the accounts of the Ministry of Finance. The Auditor General recommends that the “Central Bank of Sri Lanka should take steps to verify the accuracy of information on foreign debts other than international sovereign bonds contained in the reports obtained through the Commonwealth Debt Reporting and Management System …maintained by the Ministry of Finance.”
How big and deep is the hole we are in? Apparently, we have no way of knowing!
The Auditor General felt the need to include the following in his recommendations:
“Borrowings should be made within the maximum borrowing limits set under the Appropriation Act and the Active Liability Act (Reference: Paragraph 2.2.3) …”
“Adequate and necessary disclosures should be made in compliance with the Accounting Standards so that an accurate understanding of the overall debt liability of the Government can be obtained through the use of Financial Statements of the Government.”
“In obtaining commercial loans at higher interest rates from the foreign financial institutions or market by the government or on government guarantees, limiting of taking those loans only to projects which will generate income in future by investing those funds and decide to take those loans after carrying out a formal cost benefit analysis.”
The general public would be under the impression that this sort of basic advice would have been given in 1949, when the Central Bank was first established, not in the 21st century to a middle-income country with no dearth of qualified accountants. Now in receipt of some assurance of IMF assistance, this system which operated in the dark, hurtling towards disaster, isn’t sure if it should reveal the details of its agreed programme for any kind of review.
Throwing more light on the state of financial mismanagement, the Auditor General had recommended that action should be taken to include “all information that should be contained in the budget, the economy and the financial position report to be presented to Parliament in terms of the Fiscal Management (Responsibility) Act, No.3 of 2003”.
What does this mean? That Parliament, which ought to bear responsibility for financial decisions, had less than complete information when they voted for the various decisions. It also recommends to the Finance Ministry that it identifies “the significant variations in certain information in the annual report of the Ministry of Finance and the public financial information contained in the Financial statements of the Government” and to correct them accordingly.
The primary Ministry responsible for handling the country’s finances had huge holes in its accounts but had no idea they were there, nor what they might be.Wagging his finger right in its face, the Auditor General admonishes the Ministry of Finance that realism should play a role in its estimates of Revenue and also its expenditure.
The Ministry seems to have bypassed parliament altogether when they realized their mistakes and made adjustments, without the approval of parliament, which was blissfully unaware that they would be held responsible for things they didn’t do. Thus perhaps, the recent chant of the people that all 225 should go! One hopes that the Auditor General’s recommendation that a mechanism be developed to obtain approval of Parliament when wrong figures previously presented are revised, has now been implemented.
Neither caring nor sharing
The OHCHR has naturally recommended that any international financial agreements should be evaluated for their impact on human rights. The IMF itself has insisted that corruption vulnerabilities should be minimized. Not a ringing endorsement of either the officials or the politicians involved. All in all, none of these paints a reassuring picture of a government which knows what it’s doing, or is apologetic for past mistakes. It just helped itself to a massive cabinet which is reportedly scheduled to expand amidst an unprecedented cash crunch.
The people of this country, especially its youth who have most to lose, either ran for the door or toughed it out at the Aragalaya and threw an administration out, armed only with desperation. There’s evidently more suffering to come, and the new President is determined that people shouldn’t protest about it. He has dusted off legislation that the state promised the UN will be subject to a moratorium, and is busily arresting protesters under the Prevention of Terrorism Act. Armed with a majority in parliament, the government is unlikely to change course. The people will be grateful that in Geneva, the UNHRC seems to care enough to hold the government responsible.
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