Features
In defence of Constitution and the rule of law
By Neville Ladduwahetty
The BASL is reported to have stated: “Respect for the Rule of Law and to Constitutionalism is essential to protect the rights of the people of Sri Lanka and their livelihoods…. The BASL unequivocally states that at this decisive time, in our country, it is absolutely necessary that all citizens respect the Rule of Law and Constitutional Governance. It is not in the interest of the country, or its people, to ignore provisions of the Constitution, which is the framework under which Sri Lanka is governed” (Daily FT, July 13, 2022).
Prime Minister Ranil Wickremesinghe has been unequivocal in his commitment to defending the Constitution.The question that follows is whether the Constitution and the rule of law were violated during the events of the last few months, and if so, by whom and to what extent.
ABSENCE of RULE of LAW
For instance, the public space of Galle Face and surroundings was occupied by the protesters, thus violating the rights of others the access to such spaces. Others who engaged in protest marches also seriously compromised the rights of the rest. Such arbitrary and unilateral action contradicts the very principles for a just society, aspired to by the protesters. What the government should have done was to find alternative space for the protesters to carry out their activities in a manner that does not violate the rights of others. It is, therefore, evident that the government was complicit in not enforcing the Rule of Law and protecting the fundamental rights of the silent majority for equal protection, under the law.
During the early stages, the BASL, and other defenders, that included representatives of foreign governments, collectively defended the rights of the protesters for peaceful protests. Throughout this period, the BASL has acted as the guardians of the Law. However, the defenders of the right of peaceful protest failed to question what the protests were about. Had they done so, they would have realized that although the protesters initially claimed that they were for a system change, their main and very vocal demand was “GotaGoHome”. This amounts to a group pf people, regardless of their strength, demanding the resignation of a Democratically elected President who is also the Head of State, elected to exercise the executive power of the People as an integral part of their sovereignty, resorting to demands and engaging in activities in violation of the Rule of Law, when constitutional provisions exist to achieve their objectives. Having failed to bring to the attention of the protesters the imperative need to adopt constitutional means to achieve their goals, the defenders are now reminding all concerned the “need for Constitutionalism and the Rule of Law”, after several aspects of the Rule of Law were violated by the very protesters they earlier defended.
With time, the protesters were portrayed as representing the popular wishes of the people. No attempt was made by the government to ascertain their true strength in relation to the silent majority. This perception resulted in the protesters being taken seriously enough to be part of a potential political force that could be exploited politically to serve the narrow ends of minor political formations. The attention the protesters received emboldened them to the point that they ceased to be peaceful protesters and ended up storming public buildings and vandalizing the assets, claiming that they belonged to them, not realizing that these assets belonged to the whole nation. Therefore, vandalizing them amounted to destroying national assets for which there has to be accountability. Who is accountable for such actions? Should not those who initially defended the protesters and now say that the wishes of the protesters should be entertained share responsibility for their failure to have publicly withdrawn their support for not only resorting to unconstitutional measures but also for vandalizing national assets that belong to the present and future generations?
ASSAULT on CONSTITUTIONAL GOVERNANCE
The formal appointment of former Prime Minister Wickrrmrsinghe to carry out the functions of President Gotabaya Rajapaksa, while he was absent from the country, as the Acting President, is in keeping with Article 37 (1) of the Constitution. This Article specifically states: “If the President is of the opinion” that for whatever reason, he is unable to perform his constitutionally assigned tasks “he may appoint the Prime Minister to “discharge the powers, duties and functions of the office of President during such period”. Since “during such period” is not limited to a specific period, it would be wrong to interpret that he, or any President, has vacated his post during the period he was physically absent from office. Also, in keeping with the Constitution is his formal appointment as Acting President, following the formal resignation of former President Gotabaya Rajapaksa. However, until Parliament elects a President and he appoints a Prime Minister, Hon. Ranil Wickremesinghe would have to perform the functions of Acting President and that of a Prime Minister, if the administration of the country is to continue unimpeded. If, on the other hand, he caves in to the demands of the protesters and others and resign, the entire country would be engulfed in an administrative chaos. Maybe this is what the protesters, and others, who condone such demands want, because out of chaos emerges opportunities.
A matter of serious concern was the call by party leaders, as well as by former President Sirisena, for the resignation of the now Acting President Ranil Wickremesinghe. If he complied with the “request” Sri Lanka would be without an Acting President and in the absence of an appointed Prime Minister, the Cabinet and Secretaries to Ministries would cease to exist, resulting in a complete breakdown of the administration. Is this what the party leaders want?
If the party leaders were disillusioned with the President to the extent to call for him to step down, they could have instituted an impeachment motion, with the backing of the protester’s support, in Parliament, under Article 38 (2) and succeeded in getting rid of the President, constitutionally, in keeping with the oath they had taken to abide by the Constitution. On the other hand, if the party leaders called for the President’s resignation because they hold him, and only him, responsible for the dire economic situation in the country, they are forgetting that, since most of the party leaders, are or were, Members of the Cabinet, that they are collectively responsible “for the direction and control of the Government” (Article 43 (1). Therefore, it is not in keeping with the sentiments of the Constitution to hold only the President, whoever he may be, responsible for the current economic crisis. Taking a lesson from the UK, it was the collective action of the UK Cabinet that forced Boris Johnson to quit his position as Head of the Conservative Party. Therefore, the hope of the nation is that future Cabinets take collective responsibility for their actions, and NOT allow its Head to take the sole rap for their collective misadventures.
ESTABLISHING FACTS
No attempt has been made to establish the true strength of the protesters (Aragalaya). The common perception is that they represent the people and their aspirations to the point that they represent the aspirations of ALL Sri Lankans. Another assumption is that the SLPP has lost the mandate that was secured at the Parliamentary elections of August 2020. While this maybe so, the question is whether it lost the mandate to the extent of transferring it all to the Aragalaya. Therefore, it is imperative that assumptions are verified before basing policies on unverified assumptions.
In the absence of such determinations, the prevailing tendency is to cater to whatever demands the protesters make. For instance, was the refrain “GotaGoHome” that made him leave the country a demand of the majority in Sri Lanka, or that of the protesters who claim to be the majority. Therefore, before proceeding too far to accommodate the demands of the Aragalaya, it is imperative that a survey be made by a recognized institution to ascertain the reality of the two assumptions cited above.
The most credible option would be to await the outcome of a general election where the numbers returned would reflect the true strength of the Aragalaya and the SLPP. It is only after establishing the relative strengths and weaknesses of political formations that the future direction of Sri Lanka should be established.To make determinations as to the future direction of Sri Lanka based on assumptions prior to a general election would be a mistake of a colossal order. The focus of an interim government should therefore be to await introducing any new legislation and any new executive policies until a reformulated Parliament is established.
There cannot be anything more important than yielding to the demands of some for the resignation of a democratically elected President who, according to Article 4 (b) is expected to exercise the “executive power of the People, including the defence of Sri Lanka…” as part of their sovereignty based on the assumed strength of such a demand. If such a President is incapable of fulfilling his functions there are sufficient Constitutional provisions to replace him, but not to give into demands by some who claim legitimacy on unproven grounds that they represent the voice of the people. To do so is to set in place a precedent that could lead to political instability, because it encourages violent dissent to bring about political change without exercising constitutional provisions whenever possible, to change systems.
CONCLUSION
The issues presented herein are not in the defence of Gotabaya Rajapaksa. Instead, it is in the defence of ANY democratically elected President or any other member based on the “immutable republican principle of representative democracy”, as stated in the Preamble of the Sri Lankan Constitution. That principle states that there are constitutional procedures that need to be followed if the people who elected them find sufficient grounds to remove them from the offices to which they were elected. To resort to violence or to demands when lawful measures exist, is unacceptable and should be condemned in the name of the rights of the lawful majority. Also unacceptable is to resort to violence on grounds that constitutional provisions are too daunting or are not expedient enough.
Had the protesters adopted constitutional means to bring about political change, they would have had grounds to distance themselves from those who wanted to bring about change through violence. However, that position is today denied to them. Furthermore, resorting to violence to bring about system change sets in place a precedent that precipitates instability. This is where the guardians and condoners of the Aragalaya have failed. They failed to direct and guide the energies of the Aragalaya to adopt lawful strategies to achieve their objectives. It is only when lawful measures do not exist, that other options could be considered such as in the Russian and French Revolutions.
by Dr Gotabhya Ranasinghe
Senior Consultant Cardiologist
National Hospital Sri Lanka
When we sought a meeting with Hon Dr. Ramesh Pathirana, Minister of Health, he graciously cleared his busy schedule to accommodate us. Renowned for his attentive listening and deep understanding, Minister Pathirana is dedicated to advancing the health sector. His openness and transparency exemplify the qualities of an exemplary politician and minister.
Dr. Palitha Mahipala, the current Health Secretary, demonstrates both commendable enthusiasm and unwavering support. This combination of attributes makes him a highly compatible colleague for the esteemed Minister of Health.
Our discussion centered on a project that has been in the works for the past 30 years, one that no other minister had managed to advance.
Minister Pathirana, however, recognized the project’s significance and its potential to revolutionize care for heart patients.
The project involves the construction of a state-of-the-art facility at the premises of the National Hospital Colombo. The project’s location within the premises of the National Hospital underscores its importance and relevance to the healthcare infrastructure of the nation.
This facility will include a cardiology building and a tertiary care center, equipped with the latest technology to handle and treat all types of heart-related conditions and surgeries.
Securing funding was a major milestone for this initiative. Minister Pathirana successfully obtained approval for a $40 billion loan from the Asian Development Bank. With the funding in place, the foundation stone is scheduled to be laid in September this year, and construction will begin in January 2025.
This project guarantees a consistent and uninterrupted supply of stents and related medications for heart patients. As a result, patients will have timely access to essential medical supplies during their treatment and recovery. By securing these critical resources, the project aims to enhance patient outcomes, minimize treatment delays, and maintain the highest standards of cardiac care.
Upon its fruition, this monumental building will serve as a beacon of hope and healing, symbolizing the unwavering dedication to improving patient outcomes and fostering a healthier society.We anticipate a future marked by significant progress and positive outcomes in Sri Lanka’s cardiovascular treatment landscape within the foreseeable timeframe.
by Fr. Emmanuel Fernando, OMI
Jesuit Fr. Aloysius Pieris (affectionately called Fr. Aloy) celebrated his 90th birthday on April 9, 2024 and I, as the editor of our Oblate Journal, THE MISSIONARY OBLATE had gone to press by that time. Immediately I decided to publish an article, appreciating the untiring selfless services he continues to offer for inter-Faith dialogue, the renewal of the Catholic Church, his concern for the poor and the suffering Sri Lankan masses and to me, the present writer.
It was in 1988, when I was appointed Director of the Oblate Scholastics at Ampitiya by the then Oblate Provincial Fr. Anselm Silva, that I came to know Fr. Aloy more closely. Knowing well his expertise in matters spiritual, theological, Indological and pastoral, and with the collaborative spirit of my companion-formators, our Oblate Scholastics were sent to Tulana, the Research and Encounter Centre, Kelaniya, of which he is the Founder-Director, for ‘exposure-programmes’ on matters spiritual, biblical, theological and pastoral. Some of these dimensions according to my view and that of my companion-formators, were not available at the National Seminary, Ampitiya.
Ever since that time, our Oblate formators/ accompaniers at the Oblate Scholasticate, Ampitiya , have continued to send our Oblate Scholastics to Tulana Centre for deepening their insights and convictions regarding matters needed to serve the people in today’s context. Fr. Aloy also had tried very enthusiastically with the Oblate team headed by Frs. Oswald Firth and Clement Waidyasekara to begin a Theologate, directed by the Religious Congregations in Sri Lanka, for the contextual formation/ accompaniment of their members. It should very well be a desired goal of the Leaders / Provincials of the Religious Congregations.
Besides being a formator/accompanier at the Oblate Scholasticate, I was entrusted also with the task of editing and publishing our Oblate journal, ‘The Missionary Oblate’. To maintain the quality of the journal I continue to depend on Fr. Aloy for his thought-provoking and stimulating articles on Biblical Spirituality, Biblical Theology and Ecclesiology. I am very grateful to him for his generous assistance. Of late, his writings on renewal of the Church, initiated by Pope St. John XX111 and continued by Pope Francis through the Synodal path, published in our Oblate journal, enable our readers to focus their attention also on the needed renewal in the Catholic Church in Sri Lanka. Fr. Aloy appreciated very much the Synodal path adopted by the Jesuit Pope Francis for the renewal of the Church, rooted very much on prayerful discernment. In my Religious and presbyteral life, Fr.Aloy continues to be my spiritual animator / guide and ongoing formator / acccompanier.
Fr. Aloysius Pieris, BA Hons (Lond), LPh (SHC, India), STL (PFT, Naples), PhD (SLU/VC), ThD (Tilburg), D.Ltt (KU), has been one of the eminent Asian theologians well recognized internationally and one who has lectured and held visiting chairs in many universities both in the West and in the East. Many members of Religious Congregations from Asian countries have benefited from his lectures and guidance in the East Asian Pastoral Institute (EAPI) in Manila, Philippines. He had been a Theologian consulted by the Federation of Asian Bishops’ Conferences for many years. During his professorship at the Gregorian University in Rome, he was called to be a member of a special group of advisers on other religions consulted by Pope Paul VI.
Fr. Aloy is the author of more than 30 books and well over 500 Research Papers. Some of his books and articles have been translated and published in several countries. Among those books, one can find the following: 1) The Genesis of an Asian Theology of Liberation (An Autobiographical Excursus on the Art of Theologising in Asia, 2) An Asian Theology of Liberation, 3) Providential Timeliness of Vatican 11 (a long-overdue halt to a scandalous millennium, 4) Give Vatican 11 a chance, 5) Leadership in the Church, 6) Relishing our faith in working for justice (Themes for study and discussion), 7) A Message meant mainly, not exclusively for Jesuits (Background information necessary for helping Francis renew the Church), 8) Lent in Lanka (Reflections and Resolutions, 9) Love meets wisdom (A Christian Experience of Buddhism, 10) Fire and Water 11) God’s Reign for God’s poor, 12) Our Unhiddden Agenda (How we Jesuits work, pray and form our men). He is also the Editor of two journals, Vagdevi, Journal of Religious Reflection and Dialogue, New Series.
Fr. Aloy has a BA in Pali and Sanskrit from the University of London and a Ph.D in Buddhist Philosophy from the University of Sri Lankan, Vidyodaya Campus. On Nov. 23, 2019, he was awarded the prestigious honorary Doctorate of Literature (D.Litt) by the Chancellor of the University of Kelaniya, the Most Venerable Welamitiyawe Dharmakirthi Sri Kusala Dhamma Thera.
Fr. Aloy continues to be a promoter of Gospel values and virtues. Justice as a constitutive dimension of love and social concern for the downtrodden masses are very much noted in his life and work. He had very much appreciated the commitment of the late Fr. Joseph (Joe) Fernando, the National Director of the Social and Economic Centre (SEDEC) for the poor.
In Sri Lanka, a few religious Congregations – the Good Shepherd Sisters, the Christian Brothers, the Marist Brothers and the Oblates – have invited him to animate their members especially during their Provincial Congresses, Chapters and International Conferences. The mainline Christian Churches also have sought his advice and followed his seminars. I, for one, regret very much, that the Sri Lankan authorities of the Catholic Church –today’s Hierarchy—- have not sought Fr.
Aloy’s expertise for the renewal of the Catholic Church in Sri Lanka and thus have not benefited from the immense store of wisdom and insight that he can offer to our local Church while the Sri Lankan bishops who governed the Catholic church in the immediate aftermath of the Second Vatican Council (Edmund Fernando OMI, Anthony de Saram, Leo Nanayakkara OSB, Frank Marcus Fernando, Paul Perera,) visited him and consulted him on many matters. Among the Tamil Bishops, Bishop Rayappu Joseph was keeping close contact with him and Bishop J. Deogupillai hosted him and his team visiting him after the horrible Black July massacre of Tamils.
Sri Lanka-Singapore Free Trade Agreement
By Gomi Senadhira
senadhiragomi@gmail.com
“You might tell fairy tales, but the progress of a country cannot be achieved through such narratives. A country cannot be developed by making false promises. The country moved backward because of the electoral promises made by political parties throughout time. We have witnessed that the ultimate result of this is the country becoming bankrupt. Unfortunately, many segments of the population have not come to realize this yet.” – President Ranil Wickremesinghe, 2024 Budget speech
Any Sri Lankan would agree with the above words of President Wickremesinghe on the false promises our politicians and officials make and the fairy tales they narrate which bankrupted this country. So, to understand this, let’s look at one such fairy tale with lots of false promises; Ranil Wickremesinghe’s greatest achievement in the area of international trade and investment promotion during the Yahapalana period, Sri Lanka-Singapore Free Trade Agreement (SLSFTA).
It is appropriate and timely to do it now as Finance Minister Wickremesinghe has just presented to parliament a bill on the National Policy on Economic Transformation which includes the establishment of an Office for International Trade and the Sri Lanka Institute of Economics and International Trade.
Was SLSFTA a “Cleverly negotiated Free Trade Agreement” as stated by the (former) Minister of Development Strategies and International Trade Malik Samarawickrama during the Parliamentary Debate on the SLSFTA in July 2018, or a colossal blunder covered up with lies, false promises, and fairy tales? After SLSFTA was signed there were a number of fairy tales published on this agreement by the Ministry of Development Strategies and International, Institute of Policy Studies, and others.
However, for this article, I would like to limit my comments to the speech by Minister Samarawickrama during the Parliamentary Debate, and the two most important areas in the agreement which were covered up with lies, fairy tales, and false promises, namely: revenue loss for Sri Lanka and Investment from Singapore. On the other important area, “Waste products dumping” I do not want to comment here as I have written extensively on the issue.
1. The revenue loss
During the Parliamentary Debate in July 2018, Minister Samarawickrama stated “…. let me reiterate that this FTA with Singapore has been very cleverly negotiated by us…. The liberalisation programme under this FTA has been carefully designed to have the least impact on domestic industry and revenue collection. We have included all revenue sensitive items in the negative list of items which will not be subject to removal of tariff. Therefore, 97.8% revenue from Customs duty is protected. Our tariff liberalisation will take place over a period of 12-15 years! In fact, the revenue earned through tariffs on goods imported from Singapore last year was Rs. 35 billion.
The revenue loss for over the next 15 years due to the FTA is only Rs. 733 million– which when annualised, on average, is just Rs. 51 million. That is just 0.14% per year! So anyone who claims the Singapore FTA causes revenue loss to the Government cannot do basic arithmetic! Mr. Speaker, in conclusion, I call on my fellow members of this House – don’t mislead the public with baseless criticism that is not grounded in facts. Don’t look at petty politics and use these issues for your own political survival.”
I was surprised to read the minister’s speech because an article published in January 2018 in “The Straits Times“, based on information released by the Singaporean Negotiators stated, “…. With the FTA, tariff savings for Singapore exports are estimated to hit $10 million annually“.
As the annual tariff savings (that is the revenue loss for Sri Lanka) calculated by the Singaporean Negotiators, Singaporean $ 10 million (Sri Lankan rupees 1,200 million in 2018) was way above the rupees’ 733 million revenue loss for 15 years estimated by the Sri Lankan negotiators, it was clear to any observer that one of the parties to the agreement had not done the basic arithmetic!
Six years later, according to a report published by “The Morning” newspaper, speaking at the Committee on Public Finance (COPF) on 7th May 2024, Mr Samarawickrama’s chief trade negotiator K.J. Weerasinghehad had admitted “…. that forecasted revenue loss for the Government of Sri Lanka through the Singapore FTA is Rs. 450 million in 2023 and Rs. 1.3 billion in 2024.”
If these numbers are correct, as tariff liberalisation under the SLSFTA has just started, we will pass Rs 2 billion very soon. Then, the question is how Sri Lanka’s trade negotiators made such a colossal blunder. Didn’t they do their basic arithmetic? If they didn’t know how to do basic arithmetic they should have at least done their basic readings. For example, the headline of the article published in The Straits Times in January 2018 was “Singapore, Sri Lanka sign FTA, annual savings of $10m expected”.
Anyway, as Sri Lanka’s chief negotiator reiterated at the COPF meeting that “…. since 99% of the tariffs in Singapore have zero rates of duty, Sri Lanka has agreed on 80% tariff liberalisation over a period of 15 years while expecting Singapore investments to address the imbalance in trade,” let’s turn towards investment.
Investment from Singapore
In July 2018, speaking during the Parliamentary Debate on the FTA this is what Minister Malik Samarawickrama stated on investment from Singapore, “Already, thanks to this FTA, in just the past two-and-a-half months since the agreement came into effect we have received a proposal from Singapore for investment amounting to $ 14.8 billion in an oil refinery for export of petroleum products. In addition, we have proposals for a steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million), sugar refinery ($ 200 million). This adds up to more than $ 16.05 billion in the pipeline on these projects alone.
And all of these projects will create thousands of more jobs for our people. In principle approval has already been granted by the BOI and the investors are awaiting the release of land the environmental approvals to commence the project.
I request the Opposition and those with vested interests to change their narrow-minded thinking and join us to develop our country. We must always look at what is best for the whole community, not just the few who may oppose. We owe it to our people to courageously take decisions that will change their lives for the better.”
According to the media report I quoted earlier, speaking at the Committee on Public Finance (COPF) Chief Negotiator Weerasinghe has admitted that Sri Lanka was not happy with overall Singapore investments that have come in the past few years in return for the trade liberalisation under the Singapore-Sri Lanka Free Trade Agreement. He has added that between 2021 and 2023 the total investment from Singapore had been around $162 million!
What happened to those projects worth $16 billion negotiated, thanks to the SLSFTA, in just the two-and-a-half months after the agreement came into effect and approved by the BOI? I do not know about the steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million) and sugar refinery ($ 200 million).
However, story of the multibillion-dollar investment in the Petroleum Refinery unfolded in a manner that would qualify it as the best fairy tale with false promises presented by our politicians and the officials, prior to 2019 elections.
Though many Sri Lankans got to know, through the media which repeatedly highlighted a plethora of issues surrounding the project and the questionable credentials of the Singaporean investor, the construction work on the Mirrijiwela Oil Refinery along with the cement factory began on the24th of March 2019 with a bang and Minister Ranil Wickremesinghe and his ministers along with the foreign and local dignitaries laid the foundation stones.
That was few months before the 2019 Presidential elections. Inaugurating the construction work Prime Minister Ranil Wickremesinghe said the projects will create thousands of job opportunities in the area and surrounding districts.
The oil refinery, which was to be built over 200 acres of land, with the capacity to refine 200,000 barrels of crude oil per day, was to generate US$7 billion of exports and create 1,500 direct and 3,000 indirect jobs. The construction of the refinery was to be completed in 44 months. Four years later, in August 2023 the Cabinet of Ministers approved the proposal presented by President Ranil Wickremesinghe to cancel the agreement with the investors of the refinery as the project has not been implemented! Can they explain to the country how much money was wasted to produce that fairy tale?
It is obvious that the President, ministers, and officials had made huge blunders and had deliberately misled the public and the parliament on the revenue loss and potential investment from SLSFTA with fairy tales and false promises.
As the president himself said, a country cannot be developed by making false promises or with fairy tales and these false promises and fairy tales had bankrupted the country. “Unfortunately, many segments of the population have not come to realize this yet”.
(The writer, a specialist and an activist on trade and development issues . )
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