A Supreme Court & Government that erode investor confidence in Sri Lanka?

The Sri Lankan government is callously gambling with investor confidence. The effects are already evident, and will get worse. 

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One can understand President Obama’s urgency. His legislative programme has been delayed by a divided Congress, his approval ratings have fallen and next year is election year. Hence his new slogan is ‘We can’t Wait’. Despite claims of unconstitutionality and abuse of power he has resorted to issuing executive orders to get things moving. Obama would envy President Rajapakse. With complete control of Parliament, the latter enjoys high approval ratings and an election is not any time soon. Yet Rajapakse’s government is in an equal hurry. Thus certain legislative proposals are being pushed through Parliament as ‘urgent bills’. Around a year ago, the 18^th Amendment to the Constitution was presented as an urgent bill. The latest is the Expropriation Act previously known as the ‘Revival of Underperforming Enterprises and Underutilized Assets Bill’.

There a lots of things wrong with the Act. Apart from sloppy drafting there are arguments of abuse of power, political victimization and unconstitutionality. But President Rajapakse is not the first to make maximum use of a very generous constitutional arrangement and a very compliant Parliament. There are is a certain déjà vu about the Act. After all it is reflective of a more general problem that ails democratic governance and Sri Lanka in particular and that is, not everything can be left to be decided by politicians elected through a vote.

Yet, democratic decision making has an appeal that other means don’t have. Whether it be deciding on a family holiday, activities of a social club or even governing a country, there are several reasons why we adopt a system of voting and pick the choices backed by a majority. For one thing, everyone feels consulted and no one feels left out and in any case, if most of us agreed on something – it probably was the best option after all.

However this is not always the case. The protests in Zuccotti Park in New York, St Paul’s in London and the European solution to replace the Prime Ministers of Greece and Italy with technocrats buttress the argument that democratic decision making do not guarantee good decisions. In fact democracies are known for making bad choices. Laws have been passed for example against women – when they were a weak and voiceless minority, against political opponents of the majority and most notoriously against ethnic and racial minorities. The Sinhala Only Act was a product of an elected legislature which had the backing of a majority of the voters.

There are reasons that cause this kind of defective decision making.  For one those who are in power have a tendency to try and hold onto that power – hook or by crook. A common strategy is to weaken or eliminate opponents or change the rules to ensure that those in, stay in, and those out, stay out. The imposition of civic disability on Mrs Sirimavo Bandaranaike by the J R Jayawardene government belongs to this classic type of majoritarian tyranny. But not everything results from malefic intentions. After all sometimes certain majorities may simply not understand the needs and aspirations of the minorities – despite their best intentions. For example to overcome this systemic defect at least with regard to gender and age based minorities, political parties are now required to nominate a certain percentage of female and youth candidates at elections on the basis that their male/more senior colleagues have difficulties in understanding feminine/youth perspectives when formulating government policy.

So majority decision making needs a braking system. Something that tells them – wait, think again, do you really want to do this? This is where, of the three arms of government, the unelected one – the judiciary plays a critical role. For example, when White majorities oppressed Black minorities, the judges of the US Supreme Court in Brown v Board of Education ruled that laws that promoted racial segregation were unconstitutional. They opened the doors for racial equality and in the long term those of the White House to a Black President. Similarly the Indian Supreme Court has contributed towards making Indian society more equal through their judgments attacking the caste system, bonded labour and gender inequality amongst a host of other issues.

However when judges do take on this role, they are often attacked for acting ‘anti-democratically’. But in reality when judges stand up for equal rights, political freedom etc they are not undermining democracy but strengthening it. When judges act to ensure media and political freedom, free elections, gender and ethnic equality they are enlightening majorities, creating a climate for effective debate, establishing an environment where people converse with respect and as equals. Thereby judges contribute towards strong, inclusive and vibrant societies. Therefore in the present Sri Lankan political context, the important role played by the judges of the Superior Courts cannot be overstated. As the Chief Justice of Pakistan, Ifthikar Muhammed Chaudhry demonstrated, the political impact of a judicial order ought not to be underestimated. It is in this regard that the opinion of the Supreme Court with regard to the Expropriation Act was a disappointment. No doubt the opinion of the Supreme Court demands great deference and respect. Yet article 12 (1) of the Constitution demands that equals be treated alike. Then when a law singles out a specific enterprise and certain specified assets leaving out others of a similar nature, there is a prima facie violation of Article 12(1). At a cursory glance another underperforming enterprise is Mihin Lanka. On the day the Expropriation Act was passed, Parliament was informed that the Government had pumped over Rs 10,000 Million between 2007 and 2010 into Mihin Lanka despite colossal losses. If the principle of equality were to apply, the Act ought to apply to Mihin as much as it applies to Hilton. After all under Article 123(3) of the Constitution all that the judges need is to have ‘a doubt’ about constitutionality and in such case they are entitled to declare that the bill is inconsistent with the Constitution.

If the court had ruled that the bill did threaten the rights of citizens several possible scenarios could have played out. In the very least the judges would have made the Government pause and reflect on their course of action. The Government could have either considered the views and concerns of the judges re-drafted and re-submitted the bill or forged ahead and passed it using its special majority in Parliament. If the Government had taken the first option, then we would have seen a better considered bill. If on the other hand they chose the second option then the Government would have been put under pressure politically to explain itself in very clear terms as to why the law is needed. Both scenarios help the quality of democracy and decision making in the country. On other hand what we do have is a scenario where people feel that their rights have been violated, a wrong policy adopted, yet the powers that be seem unconcerned – nothing like how a democracy should feel like.

The last time we had this same feeling, it was when the Supreme Court stamped its approval on the private sector pensions bill. On that occasion a young man sacrificed his life before the bill was withdrawn – surely democratic governance in Sri Lanka can find better means for participation, political expression and impact.

[Authors note: This is an expanded version of an article that was first published in the Daily Mirror on 15 November 2011]