At a time of unprecedented political turmoil when Sri Lanka’s political leadership and people’s mainline representatives are in a crisis where for most of them their reputation has been shattered, the world on Wednesday marked the fifth anniversary of the death of South Africa’s legendary President Nelson Mandela.
Much is the inspiration, the encouragement and ideals that Nelson Mandela could give to world leaders and politicians. We hoped that in overcoming the current crisis our leaders also will take the right perspective and paradigm shift from Mr. Mandela and become game changers. Thereby they will be remembered in the golden pages of our history, rather than ending up in a garbage dump. One of his main lessons was that he lived for democracy, and a free society, would fight for it, and was even ready to die for it.
After serving decades in prison and suffering much, he peacefully won the power struggle of South Africa’s black majority and became the President in July 1994. The people loved him and he could have served for a lifetime, but chose to retire after one term. This is another important lesson for our leaders who appear to have problems in letting go because power corrupts even the best of leaders.
Instead of persecuting the white minority leaders, President Mandela set up the Truth and Reconciliation Commission (TRC), where the white minority leaders were given an opportunity to admit their guilt, to be forgiven and play their role in society. During the proceedings of the TRC, one military officer was on trial for killing the husband and the only son of a coloured woman. When he pleaded guilty, the commission asked the woman how she would respond to it. She made two requests. One was to be shown where her husband was buried so that she could go and pay her respects. The woman paused before making her second request. A hushed court also waited and when the judge asked what her second request was, she told the young killer, I want you to come and be my son. The young killer collapsed in disbelief, but through Nelson Mandela, the world came to know of the power of repentance, forgiveness and reconciliation.
Mr. Mandela was born on July 18, 1918. Hearing the elders’ stories of his ancestors’ valour during the wars of resistance, he dreamed also of making his own contribution to the freedom struggle of his people.
Mr. Mandela began his studies for a Bachelor of Arts degree at the University College of Fort Hare but did not complete the degree there as he was expelled for joining in a student protest. He later completed his BA through the University of South Africa and went back to Fort Hare for his graduation in 1943.
According to the Mandela Foundation, the legendary leader, while increasingly politically involved from 1942, only joined the African National Congress in 1944 when he helped to form the ANC Youth League. Mr. Mandela rose through the ranks of the ANC Youth League and through its efforts, the ANC adopted a more radical mass-based policy, in 1949.
In 1952 he was chosen as the National Volunteer-in-Chief of the Defiance Campaign with Maulvi Cachalia as his deputy. This campaign of civil disobedience against six unjust laws was a joint programme between the ANC and the South African Indian Congress. He and 19 others were charged under the Suppression of Communism Act for their part in the campaign and sentenced to nine months of hard labour, suspended for two years. A two-year diploma in law on top of his BA allowed Mandela to practise law, and in August 1952 he and Oliver Tambo established South Africa’s first black law firm, Mandela & Tambo. At the end of 1952, he was banned for the first time. As a restricted person he was only permitted to watch in secret as the Freedom Charter was adopted in Kliptown on June 26, 1955.
On October 9 1963, Mr. Mandela joined 10 others on trial for sabotage in what became known as the Rivonia Trial. While facing the death penalty his words to the court at the end of his famous Speech from the Dock on April 20, 1964, became immortalised. “I have fought against white domination and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all people live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs are, it is an ideal for which I am prepared to die. ”
On this Mandela Remembrance Day, we would like Sri Lanka’s leaders and other politicians to ask themselves, how many are ready to die for democracy and a free society.
President Maithripala Sirisena has decided to amend the 19th Amendment to the Constitution, which had been ratified with the utmost difficulty as a progressive measure for the country three years ago.
A special Media release, from the President’s Media Division today, stated that the President was willing to amend all politically thorny clauses contained in the 19thAmendment to the Constitution.
The press release further pointed out that the President was determined to amend all problematic clauses contained in the 19th Amendment by taking necessary measures through the Parliament.
The release said that through the 19th Amendment, the setting up of independent Commissions as well as further strengthening democratic institutions had taken place.
“By 8 January 2015, it was due to the President’s unstinted efforts that the 19thAmendment to the Constitution was passed in the House and it resolved many of the issues that had affected the country for over three decades,” the press release quoted the President as saying.
The release stated that if there are any further problematic issues that the country has to face in the implementation of the 19th Amendment to the Constitution, then it was the hope of the President that such issues could be sorted out by adding more amendments to it through the legislature.
One of the key promises given by the yahapalana Government had been to ratify the 19thAmendment to the Constitution and through it to further solidify the functioning of institutions within a democratic framework.
However, after the ratification of the 19th Amendment, former President Mahinda Rajapaksa and his then JO MPs' continued to insist that once they regain power it will be totally dispensed with.
The Act removing the ability for a President who had served two terms in office, from running for a third time, was introduced for the first time through the 19th Amendment.
Another key point was the reduction of the powers vested in the Executive Presidency through the 19th Amendment to the constitution.
Among a few of the independent Commissions that were set up through the 19thAmendment to the Constitution were the Independent Police Commission, Independent Audit Commission and the Independent Procurement Commission.
The Court of Appeal by its Interim Order issued on 3rd December 2018 stayed the de facto Government from functioning. The very next morning, on some radio show called the “talk of the town”, a man claiming to be an expert on everything, with a deep voice and a heavy accent – ostensibly trying to imitate some foreign journalist, claimed that the Country can be run by the President with the support of the Secretaries of the Ministries. The same was echoed by him, that evening too warranting response.
The effect of the interim order issued by Court is to prevent the persons named as Respondents in the case from functioning as de facto ministers. Therefore, at present there is no de facto Cabinet of Ministers appointed on a staggered basis after 27th October 2018.
The Hansard carries that on 14th November 2018 and on 16th November 2018,two Votes of No Confidence were passed by the majority of the members of Parliament. That evidence contained in the Hansard is conclusive proof that the motion for a Vote of No Confidence was successfully passed. Article 48 (2) of the Constitution specifically provides inter alia that the Cabinet of Ministers stand dissolved if a vote of No confidence is passed against the Government.
Therefore, there is no question that, as of 16th November 2016, the purported Cabinet of Ministers stood dissolved in terms of Article 48(2) of the Constitution.
It is pertinent to note that Article 52(3) of the Constitution reads as follows:
“The Secretary to a Ministry shall cease to hold office upon the dissolution of the Cabinet of Ministers under the provisions of the Constitution or upon a determination by the President under Article 43 or 44 which results in the Ministry ceasing to exist.”
Thus it is clear that, the Cabinet of Ministers stood dissolved with effect from at least 16th November 2018 and therefore, by operation of law, the Secretaries to Ministries ceased to hold such office. There is no room for interpretation and there is no ambiguity in this.
The next pertinent question to ask is whether the His Excellency the President could repossess all executive power of the People without appointing a Prime Minister or a Cabinet of Ministers. It appears that the commentator who promoted the idea that His Excellency the President could run the country without appointing a Cabinet of Ministers was proposing just that. His argument may have held some water, under Article 44(2) of the Constitution prior to the 19th Amendment.
The Pre 19th Amendment Constitution Article 44(2) provided as follows:
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 under the provisions of paragraph (1) of this Article or the provisions of paragraph (1) of Article 45 and may for that purpose determine the number of Ministries to be in his charge, and accordingly, any reference in the Constitution or any written law to the Minister to whom such subject or function is assigned, shall be read and construed as a reference to the President.
However, the 19th Amendment has taken away such power and His Excellency the President cannot any longer assign unto himself any subject or function nor can His Excellency the President keep in his charge any subject or function not assigned to any Minister. Therefore, the Constitution contemplated that His Excellency the President not holding on to any Ministerial Portfolios and allocating all subjects and functions to such Ministers so appointed. However, an exception was made in respect of the incumbent President where His Excellency Maithreepala Sirisena was permitted to hold on to the Ministries of Defense, Environment and Mahaweli.
Peacebuilder Bob Rae’s Reflections on the Sri Lankan Peace Process During the difficult time and need for a Pluralist Constitution
Written by Pitasanna Shanmugathas-
( December 6, 2018, Toronto, Sri Lanka Guardian) Bob Rae is a former Member of Parliament, former interim leader of the Liberal Party of Canada, and former Premier of Ontario. Mr. Rae was the chairman of the Forum of Federations. As chairman, Mr. Rae helped oversee constitutional discussions between the government of Sri Lanka and Tamil Tiger rebels. In his critically acclaimed book, Exploring Democracy: The Risks and Rewards of Pursuing a Good Idea, Mr. Rae dedicates a whole chapter to the ethnic conflict in Sri Lanka and his experiences overseeing negotiations between the senior individuals of the LTTE and the Sri Lankan government.
In 2015, I had a chance to sit down with Mr. Rae for an interview to discuss his role during the Norway brokered ceasefire between the Sri Lankan government and the LTTE.Rae stressed the need for Sri Lankan to adopt a pluralist constitution that respects, protects, and provides rights to all communities. Given that November 27th—widely known as MaaveerarNaal among Sri Lankan Tamils—just recently passed, it is worth looking back at history and seeing why the conflict ended in such a brutal and violent manner and why a peaceful solution to the civil war did not occur.
What follows is a transcript of the interview, edited for clarity and length.
Pitasanna Shanmugathas: Can you tell me how the Forum of Federations initially became involved in Sri Lanka?
Bob Rae: We were approached—initially before and after the ceasefire was negotiated—by the government of Sri Lanka and by the government of Norway to try to help in the process of discussions with the LTTE. You’ll remember that there was a major attack at the airport in Colombo in 2001, and at that point I think there was a sense inside the Sri Lankan government that it was time to try to engage with the LTTE to see if there was a possibility of finding a negotiated solution. So, for a period of about 3 or 4 years, the Forum of Federations, and I, as chairman, as well as David Cameron (the Dean of Arts and Science at the University of Toronto),were working closely with the [Sri Lankan] government, with the government of Norway, and with the leadership of the LTTE.
Why didn’t anything substantive and meaningful come about from the negotiations you had with the senior leadership of the LTTE and senior members of the Sri Lankan government?
Well, as I outlined in the book, there are a lot of reasons. I think fundamentally the reason that a negotiation usually fails is because either one party or both parties to the negotiation conclude that it is better to continue with the struggle and the conflict than to try to reach a solution. And in the case of the government and the Tamil Tigers, the conclusion that I came to, [was] that the gap between them was just too big—that the level of ill feeling was too strong. On the one side, I think the Tamil Tigers’ memory of discrimination and of hardship went back a long way in terms of the conflict in Sri Lanka and in the case of the government, I think the sense was well, the price that’s being asked is too high. It threatens the unity of the island and they felt increasingly confident that they could win a military victory.
Did you ever personally believe that the LTTE was genuine in coming to a peaceful agreement or did you think they were just buying time for the next military confrontation?
No, I don’t think they were disingenuous. I think both sides would have liked, if possible, to find a solution, but the reality is that what the LTTE would have required would have been a major change in the governance of the country and what the government was prepared to do was nowhere near that. So I think in a sense both sides had other agendas and other possibilities of returning to conflict in the back of their minds. And I think that’s revealed by the number of times that the cease fire was breached. I mean the cease fire was a very imperfect instrument. There was an end to a lot of overt conflict, but there was still a lot of skirmishing going on and a lot of breaches of the agreement.
The Forum of Federations, they always tried to push a federalist solution, but the LTTE just wouldn’t buy it.
Well, I’m not sure I’d say that we were pushing it. I think what we did was—[during a meeting] between Mr. [Anton] Balasingham and the government in Oslo in 2003-2004, I’m going by memory with my dates, where it looked as if they were agreeing that a range of possibilities within the federal arrangement should be looked at and should be a focus. That’s really what the subsequent conferences were supposed to be about in terms of looking at what that would mean, but you know the word federalism, and I used to call it the “F” word because the government hated it, the federalist word, and I think the leadership of the Tamil Tigers never really believed, that the government of Sri Lanka would give them enough autonomy and enough capacity to run their own province or their own state. And therefore they were sceptical about whether it would really provide some answers.
During the negotiations, you had access and ability to travel throughout the Vanni region. Did you get a chance to talk to civilians, and if so, what was their general impression of the LTTE’s actions? Did they support Prabhakaran and his idea for a separatist state or did they want federalism?
Well let me tell you, I mean it’s very difficult because the Tamil Tigers still had a very dominant role in the Vanni so you could have informal conversations with people, but people were very afraid to speak openly. It was essentially a militant leadership that was very tightly controlled and very disciplined in their approach to conversation and dialogue. Mr. Cameron and I got to know them quite well, but I wouldn’t say that we explored fully all the range of things that they might be prepared to think about. My sense was that I never met with Prabhakaran and the fact that I never met with him made me believe that he was never really engaged in that process. He always believed there was only going to be a military solution. And my problem with that approach was, and I’ve said this to the other leaders, was that if it went back to a full-blown conflict, that the LTTE would lose and would be defeated and it would be brutal. And unfortunately, I was right. I’m not happy that I was right, but I certainly felt that the world would not come to the attention of, to the aid of the Tigers. And then particularly after 9/11, the game was up. This was not something that was going to be countenanced by Sri Lanka’s neighbours and it was not something that was going to be supported by the Americans or the Brits or anybody else.
In your book Exporting Democracy, you talk about certain mistakes that Prabhakaran made like he didn’t accept the Indo-Lanka Accord, the Rajiv Gandhi assassination, so what do you think are the biggest mistakes Prabhakaran made that led to his defeat?
I don’t think you can say that Prabhakaran alone is responsible for what happened. I think that what I’m trying to say in my book is that you have to understand that there were hardliners on all sides. I mean there are within Sri Lankan society, there are those in the Sinhala community who don’t believe that there should be any particular recognition of the reality of a different Tamil culture and the need to recognize the diversity of Sri Lanka. There’s a real question as to how much diversity and how much difference and how much pluralism the elements in Sinhala society are prepared to accept and that’s always been a challenge. Plus there were those who said let’s just carry out a military solution and let’s just impose our will, we can get away with it. And I always felt that if that were to happen, it would happen at a considerable price and I think Sri Lanka has paid a high price for having essentially found a temporary resolution ‘cause there’s no deep-seeded resolution of the conflict. There’s just a kind of a repression of the conflict. And I think that’s the issue that everybody has to look at.
But within the LTTE, I think Prabhakaran had too much control over everything. I think that he did not allow for an open discussion with a whole bunch of people about what might or might not take place, and he was unable to, in fact, to transition from a militant essentially guerrilla army with a very narrow left wing nationalist agenda to a more broader, again, more pluralist, I use that word, view about how coexistence within a single country was the only practical solution.
And, I think that the strategic mistake was to understand that in order for any solution to be found, significant allowances have to be made, particularly for what the Indian government would allow or what they would see as a reasonable position. You can’t just pretend that Sri Lanka isn’t next to a nation [India] of a billion people with a very large Tamil population that has created a federal structure and that believes there is ways these things can be resolved. And I think that Prabhakaran took a series of steps rejecting the underlying core.
I think it’s clear organizing the assassination of Rajiv Gandhi, which was a terrible, terrible tragedy. But it was also a terrible mistake. It was just like; you can’t do that, and expect to get away with it and expect other governments to say, well, that’s in the past. I mean, it was very clear to me in all of my discussions with Indian officials that, that was something that was not going to be forgotten. And I think it was clear that’s what happened
When speaking about Prabhakaran in your book, Exporting Democracy, you stated that “he could never become a Nelson Mandela or even Yasser Arafat. His end game was martyrdom.”
I’m not a guerrilla, okay. I’m not somebody who believes that power should come out of the barrel of a gun. I don’t think that’s the way to lead a country. I go into the stores in Scarborough in Toronto and I see pictures on the wall of Prabhakaran. And so, I’m aware of how he is been lionized and remains a revered figure in many, many parts of Canada as in many parts of Australia, many parts of England and many parts of Sri Lanka. I’m still entitled to my own view, which is that he maintained a single-handed and ruthless control over his organization. And did not allow for the transition to a more peaceful and democratic approach. And if you take the example of the PLO, all the criticisms that one can make of the PLO, I’ve certainly made them over time. They have begun this process of transition. I mean, that’s why there’s a big debate going on as to how we move forward. And that’s why President Abbas is criticized because he wants there to be a negotiation with the state of Israel. They are recognizing increasingly the need for a democratic solution. I never found that kind of language coming out of Mr. Prabhakaran, any written statement that he made or any speeches that he gave. I never saw that as part of his vision.
In your book, Exporting Democracy, you asserted that a reason why the negotiations weren’t successful is because of the two main political parties in the South. They were at each other’s throats. And now that the LTTE is defeated, do you believe federalism is a more viable solution?
Well, it’s hard because the reality is in countries which have come to a federalist conclusion, it usually came as a result of recognition on the part of all sides that some kind of pluralist constitution is the only answer. Pluralist in the sense that, centrally the institutions have to reflect the diversity of the country and that geographically, the states and provinces, whatever you want to call them, have a unique relationship with their own people. And, I don’t think the political will to get to that kind of a resolution was present in Sri Lanka. I mean, I had hoped that it would be. We agreed that we would facilitate discussions to see what could emerge from the give and take. But in the end, I think we had to come to terms with the fact that it simply wasn’t going to happen.
Now, the question is, well, the underlying facts of the country still speak to the need for a more diverse constitution and for a greater recognition of minority rights. And this goes back to the beginning of the real sort of modern political debate in Sri Lanka, which came I guess with the arrival of the British and then the departure of the British. And, so far the majority has not been able to pull it off. They have not been able to find the political will within them to resolve the issue. And there are a lot of elements within Sinhala society which don’t respond well to that.
If you had it your way, looking at it from your perspective, what would be the ideal federalist solution?
Well, I think, first of all, I mean you as a young social scientist, you will appreciate this.You have to look at the evidence, you have to look at the facts, and there hasn’t been amodern-day census in Sri Lanka for a long time. We need to look in an objective way, we need to look at where people are living and how people, where exactly people are and what the relative makeup of the population is. I suspect what we would find is that there is still a Tamil majority in some parts of the country, but that there’s also been a significant movement of the Tamil population to Colombo.
Bob Rae is a former Member of Parliament, former interim leader of the Liberal Party of Canada
We would need to find ways to allow for a greater degree of provincial autonomy, as well, which would imply that in the case of some provinces the Tamils would have a majority in that province, but there would have to be protections for minorities everywhere. And there would have to be protection for both communities in the reform of central institution. So, that you don’t have a non-representation of the Tamil community on the courts in the upper house in the political structures. And that their interests are protected at the center as well as their interest being protected in the provinces.
But if you look around the world, I mean, you know, this is in a sense the strength of the federalist’s idea is that around the world there are a number of different ways of doing this. There’s not just one way, it is not like you take a cookie cutter off the shelf and say, here it is, here’s your constitution. People have to come to it in their own terms and in their own ways. And that I think still a discussion that needs to happen.
A lot of people are quick to call what happened to the Tamils in Sri Lanka genocide. Even, your former Liberal colleague MP Jim Karygiannis, whom I interviewed, said that what happened to Tamils in Sri Lanka is ‘nothing less than genocide.’
I’ll say, no, to me it’s… let’s call it, for what it is. It was a horrendous, violent attempt to overpower the Tamil minority and to entirely eliminate the political leadership of the community. Now I have problems with some of the elements of the political leadership. I had disagreements with the LTTE and I still get criticized in the Tamil community in Toronto for being not sufficiently supportive of the LTTE. I’m not a fan of the LTTE. I don’t think what they did had a positive solution at hand and it was kind of a cult. And I talk about that in the chapter and say, you have to look at it in a more tough-minded way and say it doesn’t meet the test of a modern, open political movement.
Organizations like the Transnational Government of Tamil Eelam (TGTE), when you criticize the LTTE, they demonize you. The TGTE is quick to criticize the government’s actions, but they do not mention how the LTTE used civilians as human shields, forcibly recruited children into armed combat, and their atrocities against Muslims, etc.
Well, I mean, as they say, they are what they are. The fact is that this happens often where in international conflict, the diaspora groups that have maintained a position, which I think if you looked at it objectively, you would say, well, that’s actually a different position than the one that’s being adopted by many inside Sri Lanka. And so that is something that we have to contend with and we have to deal with. But essentially I believe that the resolution of the conflict will require the approval of the Tamil community living inside Sri Lanka. The political leadership in Sri Lanka, and obviously the Tamil Diaspora, will now need to come to terms with that. And realize that, you know the world is a little different than the one that they left either in the early 1980s or the late 1980s or the 1990s or even in the last 10 years.
Do you support the Tamil groups, the TGTE’s call for Sri Lanka to be referred to the ICC to face charges of war crimes?
I do think that it is inevitable that there will be a reckoning for what took place because I don’t think we should underestimate the extent of violence against the Tamil minority. I also think that if you were, I suspect that if you were to do a truly objective analysis, which the court would have to do, it would relate to crimes both by those who were in government and in power as well as by the leadership of the LTTE. There is enough responsibility to go around here. And I think everybody has to face up to that, that some of the things that were done and not just done, you know, in terms of the fight between the LTTE and the government. But even within the Tamil community itself, you have to… one has to recognize that terrible things were done by the LTTE towards people who had a different perspective and different point of view. I mean, I feel very personally much caught up in this because I have [Tamil] friends who [spoke out against] the LTTE and were killed. I have made friends in the LTTE leadership who were also killed, and, you know, you can’t come away from that without a sense of just a deep, deep anger and sadness at the fact that people chose violence as a way to resolve the conflict.
Why do you think a consensus has not developed amongst the young urban professionals and the Tamil Diaspora about the virtues of a federal solution? I mean, you were saying earlier how you were criticized even by Tamil Organizations in…
[As] somebody who’s been in Canadian public life, I’m used to being criticized. So, I don’t take that as a final judgment. I still believe that whatever name you give, a pluralist constitution is one which recognizes the diversity of the population and the integrity of human rights, whether it’s for Canada or whether it’s for Sri Lanka. It’s the right way to go because in the absence of pluralism, you have repression, and if the distinctiveness of different populations [are not] recognized, you have repression. Repression is never the answer. What we have to continue to do is, work hard, very hard at really trying to find more creative solutions. I think the one thing that is true is that, as I said before, there is no cookie cutter where somebody from the outside said, well, here’s your constitution. That’s not going to work. It’s got to come from inside.
Mr. Rae, you have been a staunch defender of human rights throughout your entire career. What do you want your legacy to be or what do you want to be remembered for?
Well, I don’t want to be remembered for anything because I’m not dead yet. And, I have no intention of stopping my engagement. I mean, I still look forward to new engagements. I’m working hard on aboriginal issues in Canada, which I think are some very critical human rights issues. Like the question of indigenous rights in our own country and around the world is a very critical question—and an exciting one that we have to continue to understand and work on. But I think what’s exciting for me is that the aspiration for freedom and the aspiration for recognition remains really powerful, a powerful idea around the world and I’m very happy to continue to be part of it and to see how it continues to flourish.
he current political impasse in Sri Lanka marks an important opportunity for Mahinda and Gotabaya Rajapaksa to think about the consequences of their current actions for future support from the United States and others for a government a Rajapaksa could be elected to lead next year. Despite two no-confidence motions against Prime Minister Rajapaksa’s Government and two motions to halt funding for government ministries, Mr. Rajapaksa hasrefused to step down.
"The Rajapaksas enjoyed famously good relations with China during Mahinda’s presidency"
His refusal not only calls into question his and the Sri Lanka Podujana Peramuna’s (SLPP’s) adherence to Sri Lanka’s Constitution, it begs the question why they are inflicting unnecessary wounds on their and the SLPP’s future. The strong showing of Rajapaksa and the SLPP in local council elections earlier this year demonstrated the support Rajapaksa continues to enjoy in Sri Lanka. New presidential elections could be called early next year. Although Mahinda Rajapaksa is prohibited by the Constitution from running again for presidency, his brother Gotabaya could be a strong contender.
"A new MCC programme for Sri Lanka is now under consideration"
The Rajapaksas enjoyed famously good relations with China during Mahinda’s presidency. China financed the port of Hambantota and several other mega projects. The Hambantota port project has since become a cautionary tale for all recipients of China’s Belt and Road Initiative (BRI) largesse. When Sri Lanka could not service its debt payments, China instead negotiated equity control of the port for itself. Since then, newly-elected governments in the Maldives, Pakistan and Malaysia all have announced reviews of BRI projects in their countries to be sure these projects benefit their countries and will generate good rates of return that would enable them to service their debt to China. Indeed, as Xi Jinping doubles down on BRI and continues projects that will give Beijing the capacity to exert control over international waters in the South China Sea, countries across Asia increasingly want to maintain good relations with the United States, Japan, India and others to counter-balance China’s growing economic and military influence.
SL well-positioned to benefit from new Indo-Pacific initiatives
Results of recent mid-term polls in US to bring added scrutiny on SL
The United States, and other members of the Quad - India, Japan and Australia – have responded by enunciating a broad Indo-Pacific strategy to ensure a free, open and prosperous Indo-Pacific. The US also passed the Better Utilization of Investments Leading to Development (BUILD) Act earlier this year, creating a new International Development Finance Corporation (IDFC) to incentivize US corporations and institutional investors to invest in developing countries and provide an alternative financing mechanism to China’s BRI. The IDFC complements new US Millennium Challenge Corporation (MCC) projects in countries that meet a host of good governance criteria. A new MCC programme for Sri Lanka is now under consideration. Japan and others have developed their own international infrastructure and Indo-Pacific initiatives.
Hambantota port project a cautionary tale for all recipients of China’s Belt and Road Initiative (BRI) largesse
SL should expect more intensive congressional review of its recent actions, which could impact SL’s access to financing from the new IDFC or the MCC
Sri Lanka -- with its strategic location on the busiest sea lanes in the Indian Ocean, its literate population and the tentative steps it had taken to achieve reconciliation after its bloody war with the Liberation Tigers of Tamil Eelam (LTTE) -- had been well-positioned to benefit from these new Indo-Pacific initiatives. But President Sirisena’s and Prime Minister Rajapaksa’s recent actions have raised serious questions in Washington, New Delhi, Tokyo and elsewhere, about their commitment to democracy and good governance. The results of the recent mid-term elections in the United States will bring added scrutiny on Sri Lanka. The Democratic Party won back control of the House of Representatives and announced that promotion of human rights and democracy would be a priority. So Sri Lanka should expect more intensive congressional review of its recent actions, which could impact Sri Lanka’s access to financing from the new IDFC or the MCC. The above analysis suggests that Mr. Rajapaksa would be wise to step down as Prime Minister, and instead put his considerable political skills toward helping the SLPP win next year’s presidential elections through a free and fair contest. This would resolve the current political impasse and position Sri Lanka to be a leader and winner as the new Indo-Pacific great game unfolds.
Ambassador Robert Blake served as US Ambassador to Sri Lanka from 2006 to 2009 and then as Assistant Secretary of State for South and Central Asia from 2009 to 2013. He retired from the US Government in 2016 and now advises US business overseas on behalf of McLarty Associates.
Even as the people of Sri Lanka are waiting with bated breath for the Supreme Court’s ruling on the dissolution of Parliament and the functioning of Mahinda Rajapaksa as Prime Minister, European nations, which have close economic relations with the island, are reportedly very concerned about the status of the country’s economy, and what might happen to it if the political and constitutional impasse spills over into 2019.
In Europe’s estimation, the Sri Lankan economy is in bad shape, though it is admitted that the on-going political crisis is not entirely responsible for the situation, and that the crisis might only have exacerbated it.
However, the crisis is, by itself, deep and unprecedented making its future course quite unpredictable. Its unpredictability is an added cause of worry.
As on date, there is no Prime Minister and a council of ministers after the Court of Appeal issued an interim stay on the functioning of Mahinda Rajapaksa and his 49-member team of ministers. The case is now on appeal in the Supreme Court.
The Executive President, Maithripala Sirisena, armed with extraordinary constitutional powers, is refusing to re-appoint sacked Prime Minister Ranil Wickremesinghe even though the latter has demonstrated that he has majority support in Parliament with 122 of the 225 members voting with him on four different occasions in Parliament after he was unceremoniously sacked and replaced by Mahinda Rajapaksa on 26 October.
A case against the dissolution of Parliament by the President is pending in the Supreme Court and a ruling is expected only next week.
If the court rules that the dissolution was constitutional, fresh elections, which will follow early next year, is likely to settle the issue.
However, if the United National Front (UNF) comes back with a majority under the leadership of Wickremesinghe, the President will continue to make a fuss over appointing him as Prime Minister (unless he had mellowed in the meanwhile). But given the deep seated animosity against Wickremesinghe lurking in the mind of the President, the fight may continue to the detriment of the country.
If the Supreme Court ruling is against dissolution, the current Parliament will continue till mid-2020. In that event, the ball will be back in the court of President Sirisena and Prime Minister Wickremesinghe. Given the mandates the two enjoy (one is a directly elected President and the other has majority support in Parliament) a continuation of the row is guaranteed. And given the deep seated differences between the two, it seems unlikely that they will work in harmony anytime soon.
While the President has been saying that he will not re-appoint Wickremesinghe “even if all the 225 members of Parliament want it,” Wickremesinghe’s UNF is equally adamant that its candidate for Premiership will be Wickremesinghe and Wickremesinghe alone.
The gigantic clash between two powerful constitutional entities, i.e.: between a directly elected Executive President on the one hand, and a Parliament holding the nation’s purse strings on the other, will continue to torment the country struggling to get up and walk after a 30-year debilitating internal war.
Though politics is the art of the possible, and there are no permanent friends or enemies in politics, a compromise or a stepping back by one or both, appears unlikely now or in the foreseeable future.
Economy
In the meanwhile, the economy seems to be weakening. GDP Growth projection has come down from 5% to 3.5%. The Lankan rupee (LKR) has been losing value vis-à-vis the US dollar steadily to be Rs. 181 now.
However, the fall of the LKR has been on even before the political crisis sparked off on 26 October. According to the Central Bank, the LKR weakened by 4% in September and 3% in October. Overall, through 2018, it had come down by 15.4% vis-à-vis the US Dollar. The LKR’s value vis-à-vis the Euro, has also fallen – from Rs. 181 in August to Rs. 200 now.
The fall of the LKR has curtailed household consumption. Companies have put on hold expansion plans and new projects. The banking sector may see a rise in non-performing loans. The retail sector is also set for a downturn. The Christmas season, which is a time for people to go on a buying spree, is not likely to see much cheer as people are not exactly making a beeline to the shopping malls.
Sri Lanka being import dependent, the fall in the value of the rupee could lead to slow down of imports. It could lead to inflation followed by a tight monetary policy and higher interest rates. This in turn will slow down investment and growth.
Moody’s downgraded Sri Lanka from B1 to B2 due to low reserves and the tightening of domestic and international financing conditions.
The Government had taken a $ 1 billion loan from the China Development Bank to ease the pressure on the currency. In September, the Sri Lankan Central Bank said that it proposes to raise $ 250 million by issuing Renminbi-denominated ‘Panda’ bonds and $ 250 million by issuing Yen denominated ‘Samurai’ bonds in an effort to expand the country’s investor base. These bonds will allow Sri Lanka to tap into the Chinese and Japanese capital markets.
In addition, Sri Lanka is talking to Qatar and Oman about a currency swap amounting to $ 2 to 3 billion.
Government hoped to raise tax revenue by 22% in 2018, but the rise was only to the tune of 3% despite a new revenue collection law.
Due to the price reductions and tax cuts announced by the short lived post-26 October Mahinda Rajapaksa Government, the IMF has decided to put on hold aid under its Extended Fund Facility (EFF) program. The new giveaways contradicted IMF’s conditions. Therefore, the pending IMF tranche of $ 500 million has not been disbursed.
Some of the key concessions announced by the then Prime Minister cum Finance Minister Mahinda Rajapaksa are: Reduction of tax rate for agricultural businesses from 24% to 14%; reduction of tax on Small and Medium Enterprises from 24% to 14%; the increase of the threshold for VAT for small businesses from Rs. 12 million to Rs. 24 million; and for wholesale and retail businesses from Rs. 50 million to Rs. 100 million.
Rajapaksa had lifted the Withholding tax on interest on deposits and the tax on remittances. He had also cut the Telecom tax from 25% to 15%. Petrol prices were brought down by Rs. 10 per litre and diesel by Rs. 7 per litre.
Public debt
Sri Lanka is debt ridden with the public debt to GDP ratio being 77.6% which is well above the permissible level. According to Moody’s, interest payment will absorb about 40% of the country’s revenue by 2020.
Debt servicing is a huge problem for Sri Lanka, even though it has never defaulted. According to the figures put out on 2 October, the total debt servicing requirement in 2019 would be Rs. 2057 billion of which the money to be paid to foreign funders will be Rs. 786 billion ($ 4.65 billion).
The Wickremesinghe Government hoped to borrow Rs. 1.9 billion from local and foreign sources to pay loan instalments and finance the budget deficit in 2019.
The government may have to curtail public expenditure in 2019 which could cause hardship to the common man.
There has been a flight of foreign investors from the Colombo Stock Market. Foreign investors were net sellers of shares worth Rs. 20 billion in 2018. Foreigners also left the bond market to the tune of Rs. 23 billion.
Growth in credit
Thanks to Central Banks’s intervention, there has been a growth in credit, with private credit going up by 15.4% in 2018 compared to 14.3% in 2017. However, with the fall in the value of the rupee, importers are disadvantaged. The ratio of Non Performing Loans have gone from 1.9% at the end of 2017 to 2.4% at the end of June 2018.
As for international aid, while Chinese funded projects are going ahead full steam, aid from the West has been put on hold. These include the $ 500 million Millennium Challenge Cooperation fund from the US. EU and World Bank sponsored programs are also on hold. There are subtle warnings that some of these could be cancelled if the political situation deteriorates and spills over into in 2019.
Amnesty International is proud to announce that the Art for Rights: South Asia Human Rights Festival will take place at the National Film Corporation in Colombo, from 5 to 9 December.
Featuring films, dancers, music performances, art installations, talks, graffiti, photography exhibitions and many other events. Art for Rights celebrates the work of South Asian artists and human rights defenders as the world marks the 70th anniversary of the Universal Declaration of Human Rights.
“This is the first time Amnesty International is organizing a human rights festival in Colombo. Our aim to bring together as many activists, artists, students and youth groups to a common platform, and to initiate discussions on human rights and challenges we face in the region,” said Biraj Patnaik, South Asia Director at Amnesty International.
The festival has a special focus on short art installations, including work by renowned Bangladeshi photographer, Shahidul Alam and of Dhahau Nazeem, a photographer and activist from Maldives engagement in human rights.
Key highlights include:
Award-winning films from Afghanistan, Bangladesh, India, Nepal, Pakistan
Dance troupes from Sri Lanka and Nepal’s Tharu community
Performances by Ali Aftab, one of Pakistan’s most provocative musicians whose work is richly laced with satire and political commentary
Graffiti and murals by Afghanistan’s famous ArtLords collective
A discussion on “Where human rights went wrong” with leading members of Sri Lankan civil society
07/12/2018
The European Chamber of Commerce of Sri Lanka (ECCSL), the American Chamber of Commerce (AMCHAM) and the Delegation of German Industry and Commerce in Sri Lanka (AHK Sri Lanka) said yesterday they were gravely concerned about the present political uncertainty and upheaval in the country.
Issuing a statement, they said,” We are of the view that the current situation will result in many adverse economic and social consequences to the country, if it remains unresolved. We would like to highlight that foreign investors and potential businesses are increasingly losing confidence in the reliability of the business environment of Sri Lanka and are reluctant to enter the Sri Lankan market due to the current instability. Most of our members who are established in Sri Lanka and whom have been surveyed are already experiencing negative impacts on their businesses
We request the relevant political authorities to ensure a stable and reliable business environment through the legal and democratically established institutions as soon as possible. It has been observed that decision making procedures and Government processes have been adversely impacted and in some cases financial damage has been caused to business. We appeal to all parties, political or otherwise, to respect the rule of law to avoid FDI outflow and to enable us to continue promotion of FDI to Sri Lanka. We remain dedicated to the cause of promoting Sri Lanka to European and American investors and to promote fair business and sustainable bilateral trade,”
Fri, Dec 7, 2018, 08:32 pm SL Time, ColomboPage News Desk, Sri Lanka.
Dec 07, Colombo: Sri Lanka's Supreme Court today concluded the hearing of the petitions filed against the dissolution of parliament by President Maithripala Sirisena and extended the injunction order issued suspending the Gazette by the President until the judgement delivered.
The apex court for the fourth consecutive day heard the arguments on 13 Fundamental Rights petitions filed by political parties against the Gazette notification 2096/70 issued by the President to dissolve Parliament on 9th November.
The seven-Judge bench of the Supreme Court headed by Chief Justice Nalin Perera yesterday extended the interim order to December 8 but today extended the order to until the pronouncement of the verdict on Monday, December 10.
The injunction order issued on Gazette 2096/70, will be in place until the verdict is delivered.
During today's hearing the court granted the petitioners the opportunity to present re-submissions and President Counsel Kanag Ishwaran appearing for Leader of Tamil National Alliance (TNA) R. Sampanthan presented submissions to the bench.
He underlined that under article 35 of the Constitution, the President had immunity from civil and criminal cases, but that immunity was somewhat restricted through the 19th Amendment to the Constitution.
President's Counsel Kanag Ishwaran stated that the provisions of the 19th Amendment to the Constitution provide the right under the Fundamental Rights to prosecute the executive and the administrative acts of the President and question his official duties.
The attorney also emphasized that since the dissolution of Parliament is an official duty of the President, it can be challenged under the fundamental rights provisions.
The other attorneys representing the petitioners also made submissions supporting the same argument.
Attorney General Jayantha Jayasuriya making his submissions on the second day of hearing on Wednesday, stated that the Supreme Court does not have the legal authority to hear the petitions and therefore called for the petitions to be dismissed.
Thirteen fundamental rights petitions were filed at the Supreme Court by political parties, and other individuals on November 12the requesting the apex court to declare President Maithripala Sirisena's order to dissolve parliament and call snap elections is in violation of the constitution and annul the order.
Political parties including United National Party (UNP), Janatha Vimukthi Peramuna (JVP), the Tamil National Alliance (TNA), Tamil Progressive Alliance (TPA), All Ceylon Makkal Congress (ACMC), and the Sri Lanka Muslim Congress (SLMC) as well as civil society organization, the Centre for Policy Alternatives (CPA), Attorney Aruna Laksiri and a member of Elections Commission Prof. S. R. H. Hoole have filed petitions.
A three-judge bench on 13 November issued an interim order staying operation of the Gazette proclamation issued by the President dissolving the Parliament until 7 December 2018.
he current political impasse in Sri Lanka marks an important opportunity for Mahinda and Gotabaya Rajapaksa to think about the consequences of their current actions for future support from the United States and others for a government a Rajapaksa could be elected to lead next year. Despite two no-confidence motions against Prime Minister Rajapaksa’s Government and two motions to halt funding for government ministries, Mr. Rajapaksa hasrefused to step down. 
