Photo courtesy Foreign Policy / Ishara S.KODIKARA/AFP/Getty Images

“The travails of the mountains lie behind us.
Before us lie the travails of the plains.”
Brecht (Observation)

Does a president’s responsibility to protect the nation empower him to impose travel restrictions on specific countries? In a case dubbed as ‘a major examination of presidential powers,’[i] the US Supreme Court is to consider the matter and give a ruling by June. If that ruling goes against Donald Trump, he will inundate the twitterscape with pre-dawn ravings. But there is no doubt he will abide by the ruling. He will not try to impeach the chief justice or threaten the judges in any way. He would probably love to, but he won’t because he can’t.

That is how democracy works: good laws, strong institutions and political leaders who abide by the limits, however unwillingly.

Sri Lanka experienced such a moment last week when Maithripala Sirisena sought a Supreme Court ruling on the duration of his presidential term. There was no doubt he wanted an extra year. The Supreme Court ruled that his presidential term, as per the 19th Amendment, is five years. How President Sirisena reacted to that ruling privately we have no idea. But in public he did nothing. He accepted the ruling and moved on.

Former President Mahinda Rajapaksa found the entire saga rip-roaring funny. At a LG election rally for the newly formed Sri Lanka Peoples Party (SLPP), Mr. Rajapaksas (who also happens to be an ex-officio patron of the SLFP) defined the Supreme Court ruling as retribution for a sin Mr. Sirisena committed in this birth (Ditta dhamma vedaneeya kamma)[ii]. Whether the sin he alluded to was the sin of defeating him electorally or the sin of restoring Lankan democracy is unclear. In Mr. Rajapaksa’s book both deeds would be equally sinful, both meriting the direst punishment.

The upcoming local government election should have been about local issues and about electing the best representatives to manage local affairs. It could have been that had the election been held on time. But the Sirisena-Wickremesinghe administration, against all sense, kept on pushing back the election on various pretexts, until the Elections Commission decided to use some of the powers vested in it by the 19th Amendment. As a result of that unintelligent procrastination, the election is being held at the worst possible time for the government. That unfortunate timing and Mahinda Rajapaksa’s ‘Will to Power’ had turned the election into a de facto referendum on the government.

The UNP, rather than Mahinda Rajapaksa’s SLPP, is likely to come first in the LG poll. The SLPP will take votes away not from the UNP but from the SLFP. If Ranil Wickremesinghe did save the Rajapaksa family from prosecution, he would have done so on the calculation of becoming the main politico-electoral beneficiary of a Rajapaksa-led decapitation of the SLFP.  His gamble will work if the SLFP emerges a strong second and the SLPP is reduced to the third place. This outcome is highly unlikely, thanks to a series of factors, starting with high prices of rice and other consumer essentials, the Bond scam and the non-prosecution of the Rajapaksas.

A more likely outcome is a diminished victory for the UNP (in terms of total votes) with the SLPP nipping at its heels. If the SLPP emerges a strong second and the SLFP is reduced to the third place, the Sirisena-Wickremesinghe administration will careen into a crisis from which it may never recover. Both Maithripala Sirisena and Ranil Wickremesinghe will be losers in such a situation. As pressure builds up on President Sirisena to reunify the SLFP and the SLPP and make Mahinda Rajapaksa the prime minister, Mr. Wickremesinghe might find himself out of a job first, perhaps a fitting retribution for saving the Rajapaksas from justice.

The LG poll will also be a test of Mahinda Rajapaksa’s claim that the country is waiting to return him to power. An absolute majority of Lankans voted for the Sirisena-Wickremesinghe administration in 2015 because they believed in the promise of a vastly better future. Disillusioned by the government’s tendency to go back on its pledges, some of those voters may want a return to the past. That is the nature of democracy. But before the past is repeated, it makes sense to remember it, not the way the Rajapaksas render it, but the way it actually was.

19th Amendment and 18th Amendment; Bond Scam and MiG Deal

The 18th Amendment, which scrapped presidential term-limits while enhancing presidential powers, was rammed through the cabinet, the judiciary and the parliament in just ten days. Mahinda Rajapaksa had no popular mandate to enact the amendment. During presidential and parliamentary elections of 2010, he promised to abolish the executive presidency, not make it even stronger than it was. The 18th Amendment was in direct violation of that pledge. Copies of the Amendment were not released to the public until it was a done deal. The Amendment was railroaded through the cabinet on August 30th 2010, approved by the Supreme Court on September 7th and passed in parliament on September 8th.

The Supreme Court led by Chief Justice Shirani Bandaranayake approved the amendment in just 24 hours. By that time the judiciary, like the parliament, had become subservient to the President and his family. CJ Bandaranayake had headed the benches that rejected Gen. Fonseka’s petition for bail, gave a free passage to the Expropriations Bill and rejected petitions against Leadership Training for university students in army camps. In a classified cable (revealed by Wikileaks), the US Ambassador claimed that Dr. Bandaranayake was a ‘Rajapaksa loyalist.’

Being a ‘Rajapaksa loyalist’ meant doing the Rajapaksa bidding not most of the time, but all the time, even where it was manifestly anti-constitutional. When the CJ made the cardinal error of not giving a free pass to the Divineguma Bill – tailor-made to enhance Basil Rajapaksa’s powers – she was hounded of her job through an illegal impeachment. When the Appeal Court tried to intervene in the process, using its constitutionally granted authority, President Rajapaksa openly threatened the judges, reminding them that “all powers regarding leave matters pertaining to Supreme Court judges and their foreign visits etc. and the approval thereof will now by default be vested with him as the Executive.”[iii]

Mahinda Rajapaksa impeached the CJ who didn’t give the decision he wanted. Maithripala Sirisena accepted the Supreme Court’s ruling with as much good grace as possible. The difference between the two reactions is neither technical nor negligible.

Ranil Wickremesinghe wanted to sweep the bond scam under a carpet of amnesia. He tried to make it happen. He failed. There is a considerable chance that the alleged culprits would be brought before the courts and tried for their crimes. That is another difference between then and now. Corruption is alive and well, but it cannot be hidden; and occasionally it might even be punished. Impunity has not been done away with completely, but it is no longer a fact of life.

This week, Colombo magistrate Lanka Jayaratne gave an order to freeze some assets belonging to Udayanga Weeratunga, allegedly the prime-mover in the controversial MiG deal, together with his first cousin Gotabhaya Rajapaksa. When details of that deal were revealed by the Sunday Times and the Sunday Leader in late 2006 and 2007, parliamentarians Mangala Samaraweera and Sripathy Sooriyarachchi made a complaint to the Bribery Commission. No investigation was ever carried out. Instead Gotabhaya Rajapaksa filed action against the Sunday Leader, thereby preventing the story from being covered.[iv]

Lasantha Wickremetunga was murdered, the Sunday Leader was bought by a Rajapaksa confidant and the paper rendered Gotabhaya Rajapaksa an abject apology. But Mr. Rajapaksa did not withdraw the case, and he gave his evidence on May 22, 2014. His cross-examination by the counsel for defence (and TNA parliamentarian) MA Sumanthiren started on May 27th 2014.

When Ravi Karunanayake and Ranil Wickremesinghe appeared before the Bond Commission, hundreds of media personnel gathered outside shouting questions. When Gotabhaya Rajapaksa was cross examined, no media personnel gathered outside the court premises. The only ones who tried to get in were the BBC correspondents. Two senior cops barred their way and informed them, “Nobody in their right minds would come here. No other media had come to cover this because they know the consequences.[v] And not a word appeared in the media bout Mr. Sumanthiran’s questions and Mr. Rajapaksa’s answers. The media kept mum, because ‘they knew the consequences,’ all too well.

The Sirisena-Wickremesinghe administration is corrupt, incompetent and clueless, but the return of Rajapaksa Rule would mean the return of a time when impunity was the norm and even a rugby referee couldn’t give a decision displeasing to rugby-playing Rajapaksa sons without risking bodily harm. Maithripala Sirisena is a weak and a brittle president, but Gotabhaya Rajapaksa would be an infinitely worse one, a dictatorial racist, a deadly cross between Benito Mussolini and Donald Trump. Ranil Wickremesinghe has turned himself into non/anti-Mr. Clean with his indefensible defence of the two Arjunas, but with Mahinda Rajapaksa as Prime Minister we will have more (not less) corruption and absolutely no space even to complain about it.

Flawed Democracy = Flawed but Democratic

Sri Lanka is facing the prospect of retrogressing to the Rajapaksa past because Maithripala Sirisena and Ranil Wickremesinghe betrayed the trust of the 6.2 million Lankans.

Last week, Mr. Sirisena sprang into outraged action when Minister Mangala Samaraweera issued a gazette cancelling a law banning women from buying or selling alcohol. Had he displayed one half of that speed and single-mindedness in dealing with the issue of rice and coconut prices or the drought (which has victimised 2 million Lankans) or the still ongoing fertiliser shortage, his SLFP would have been vying with the UNP for the first place instead of facing the ignominy of becoming a poor third. But for almost three years he ignored the economic plight of a majority of Lankan people. He did not place the welfare of ordinary Lankans over the super-profits of the rice-miller mafia (which allegedly includes his brother). Had he acted fast and determinedly to prevent the skyrocketing of rice prices, the cost-of-living problem would not have become the political millstone it is today. By failing to do so, he disappointed and alienated SLFP’s core-voters – the rural/suburban poor and middle classes – turning them into easy pickings for the Rajapaksas.

If Ranil Wickremesinghe handled the bond scam differently, he could have been confident of not just winning the LG polls, but also doing so massively. His laughable attempts to deny the existence of any wrongdoing, his unwillingness to remove Ravi Karunanayake from deputy leadership even after the Monarch Penthouse scandal came to light and his unconditional defence of Arjuna Mahendran had disgusted and alienated key components of the UNP’s core support base – the urban middle and upper-middle classes and the business community.

The Sirisena-Wickremesinghe administration has lost not just its moral compass but also its basic commonsense. The positives it has achieved are few in comparison to the multitude of forgotten and broken promises. But those few positives mark the difference between a country that is the private fiefdom of a single family and a country which is a flawed democracy. Corruption continues to be rife, but the bond scam report gives hope that at least some of the corrupt will be punished. Incompetence is monumental, but there is space to criticise it without fear. The promise to come up with a political solution to the ethnic problem has been forgotten, but there is far less official racism. What is needed is to protect and build on these achievements. The bad must be acknowledged as bad. But it makes no sense to replace the bad with the worse.

Maithripala Sirisena and Ranil Wickremesinghe had failed us. The question is, do we fail ourselves too, and allow the infinitely worse past to return to our common detriment?



[iii] Daily News – 8.1.2013