By Manilal Dissanayake –
It is in times of great peril that citizens are expected to stand and be counted. Our democracy appears to be approaching a fork in the road, a dark and perilous fork in the road, where all citizens must stand and be counted.
It is no secret that, despite overwhelming, repressive control over the machinery of the State, citizens were willing to stand and (literally) be counted, when they went to the polls in January 2015. Outraged by the manifest corruption and human rights abuses of the then incumbent regime, the citizenry voted for a change of leadership.
Fast forward almost five years, the citizenry is once more being called upon to stand up for democracy, because another presidential election looms, and its choices are as stark and existential as the last.
But the past five years have raised awkward questions about the choices at this election. To most voters, it seems like they are being asked to take a chance again, after the last experiment has been failing, for the most part, these past five years.
The incumbent Government pledged to bring the corrupt to book – yet almost all of them still roam free. The 2015 promise was about corruption-free, transparent governance, but corruption persists to this day.
Some of these questions have reasonable answers.
There is no doubt that a few members of the Government may have played a part in stalling or delaying action on some corruption related cases. But it is also true that law enforcement has unearthed damning evidence about high profile officials in the former administration. These officials have commanded tremendous resources to defend themselves and the defence has managed to effectively delay the administration of justice through a plethora of objections, appeals and revisions in cases filed against them.
It was in 2015 that the former defence secretary now running for president, filed an unprecedented fundamental rights petition seeking to prevent his arrest in an ongoing criminal investigation – and had his plea upheld by the country’s highest court by way of interim relief. Since the interim relief was provided in 2015, four judges of the Supreme Court have recused themselves from hearing the case, including the justice who provided interim relief to the former Defence Secretary in the first place, before deciding she was not in a position to hear his case.
Recent revelations on the cusp of a major national election, have also revealed that the reasons for these justice delays have been the result of infiltration by the loyalists of the persons under criminal investigation at the highest levels of Government and the legal machinery of the state. The minister who held the portfolio of Justice for three years recently boasted that he had personally intervened to prevent the former defence secretary from being arrested, despite the recommendation of senior officials in the Attorney General’s Department. A former Solicitor General, who held office from 2015-2016 also went public with his support for the SLPP and Gotabaya Rajapaksa recently. The Senior DIG in charge of the Financial Crimes Investigation Division from 2015-2019 has found himself at the centre of a corruption scandal, involving his nearest kin and a financial scammer wanted for money laundering in Sri Lanka and the US. He recently used two television networks aligned to Gotabaya Rajapaksa to claim that for four years this Government had conducted a witch-hunt against the Rajapaksa family, confirming allegations that had been swirling for years that the SDIG had built intimate relationships with the members of the former regime, and especially the former Defence Secretary, many of whom were suspects in investigations run by the FCID.
Rooting out entrenched corruption within the political system is not a task that can be achieved overnight. The process begins by holding the corrupt accountable, and ensuring that breaking the law has its consequences.
There is a truth too rarely acknowledged, that the last five years have seen unprecedented independence granted to public functionaries (such as the police), that has enabled them to act fearlessly, in investigating crimes committed, even when they were committed by ‘powerful’ people. In 2018, the Bribery Commission arrested the President’s Chief of Staff in the act of soliciting a bribe, together with the Chairman of the Timber Corporation, also a presidential appointee. In spite of stiff political resistance, the CID persisted and arrested the Chief of Defence Staff, the highest ranking military officer in the country, on charges of aiding and abetting the ringleader of an abduction racket run by the Sri Lanka Navy. Cabinet Ministers are under investigation by the CID and the Attorney General’s Department, the Prime Minister has testified publicly before two presidential commissions and one parliamentary select committee, over corruption allegations and the Government’s failure to prevent the Easter Sunday bombings that claimed 258 lives. After much fire and brimstone, even the President of the Republic eventually went before the Parliamentary Select Committee to provide testimony.
All this was possible because a culture of transparency and government accountability has slowly – sometimes painfully slowly – but surely taken hold over the past five years.
Post-2015 Structural Reforms
The post-2015 reforms (albeit inadequate) are certainly not insignificant.
The 19th Amendment to the Constitution introduced the Right to Information (which coupled with the Right to Information Act) has proved to be an invaluable tool in ensuring transparency, and in the fight against corruption.
The 19th Amendment to the Constitution also introduced further safeguards against the abuse of executive power, whittling down presidential immunity, and reducing the hitherto almost unfettered powers of the President in appointing Ministers etc. It was these reforms that stood in the way of the attempted ‘coup’ in October 2018 and allowed the courts of law to hold that the presidential actions during that period were unconstitutional.
The 19th Amendment also reintroduced the Constitutional Council, ensuring that appointments to high public and judicial office were not made on the whims and fancies of the executive. Since 2015, and particularly since the attempted coup of 2018, the Constitutional Council has been a bulwark of resistance against irregular appointments to the highest courts of the land and independent commissions, and a true check and balance on presidential power.
The 19th Amendment also established numerous independent commissions, and strengthened the independence of others. The Bribery Commission and the Human Rights Commission are prime examples.
Sectoral oversight committees were established, and parliamentary oversight was strengthened. This enabled (sometimes opposition-led) committees to act as a check on government institutions. A further safeguard against corruption and abuse of power.
Additionally, institutions such as the Office of Missing Persons and the Reparations Authority were set up as humanitarian exercises, to provide answers to families of the missing as to the fate of their loved ones. Sri Lanka’s unenviable history has resulted in an unacceptable number of missingpersons, including over 5000 members of the police and armed forces, whose fate remains unknown.
State of the Economy
The opposition charges that the economy is in tatters, and that the incumbent government has mismanaged the economy. Undoubtedly, the incumbent government’s fiscal strategies may leave much to be desired. The UNP has long been considered to be the party to fix the economy, but that illusion appears to have collapsed over the past several years.
However, that is but a small part of a much larger story. The Rajapaksa Regime invested heavily in infrastructure. The reasons for this choice of spending is no secret. However, the choice of projects left much to be desired – virtually unused or unnecessary ports, airports, sports stadiums were among the white elephants. At what cost? Phenomenal costs, and foreign debt.
The post 2015 regime necessarily had to resort to further foreign borrowings to service the debts created. A perusal of the Central Bank Reports will show that post 2015 government revenue exceeded the government expenditure. Therefore the post 2015 foreign borrowings was for the purpose of repaying the pre-2015 (Rajapakse Regime) debts!
Amidst opposition the Government made prudent business decisions by entering into management agreements with regard to some of these white elephant projects, which ensured the servicing of some debts, while ensuring that ownership in the projects would remain with Sri Lanka.
The Government also succeeded in renegotiating certain other projects, the Port City for example. Desperate for Chinese investment, the Rajapaksa Regime had agreed to transfer 500 acres of land to China on a freehold basis (ie: outright transfer of ownership to China) in the Colombo Port City. The agreement would have provided the Chinese Government with sovereign land inside a highly strategic area within the precincts of the Colombo Harbour.
However, this clause in the Port City contract was renegotiated as a mere lease to China, with Sri Lanka retaining ultimate ownership and ensuring that the Sri Lanka Navy and Coastguard would continue to hold jurisdiction over all areas of the Port City.
Freedom itself: On the Chopping Block
The biggest threat to democracy however, has little to do with economy or corruption within the body politic.
The grave and existential danger facing the Republic, is the violence and brutality that has been the hallmark of Rajapaksa Governance over the 2005-2015 decade, and the impunity those perpetrating the violence have enjoyed, not only which the regime was in power, but even after, through the patronage networks created during the decade of darkness.
Politically Motivated Violence
These facts are undisputed: star rugby player Wasim Thajudeen, renowned journalist Lasantha Wickrematunge, the cartoonist Prageeth Ekneligoda, journalist Keith Noyahr, Sirasa Media Network were victimised for falling afoul of the Rajapaksa family. All of them were dealt with a particular way. They were dealt with violently. And in cases where it was deemed necessary – they were dealt with permanently.
Abductions became the order of the day. White vans became symbols of terror. Families were torn apart. The Rajapaksa regime has the singular honour of having introduced the verb “white vanning” to the English language.
Where crimes were not motivated by political agendas, the Rajapaksa regime turned a blind eye to grave crimes committed by military personnel. Police investigations have unearthed a gory abduction for ransom racket perpetrated by a handful of Sri Lanka Navy personnel, who received patronage and protection from high ranking Naval officers. At the centre of the kidnapping racket, were five boys from wealthy Tamil families in Colombo. After extorting ransom from families over a period of time, the boys were never released. The police recently revealed to a Magistrate that evidence has led them to the conclusion that the five boys and six other young men and perhaps several more abducted persons who were illegally detained had been put to death.
Ethnic Discord as a Political Tool
When the Rajapaksa regime was not using military personnel to serve its political ends, it was busy sowing the seeds of hatred and division. The starkest illustration lies in the fact that the Defence Ministry under Gotabaya Rajapaksa’s tenure as Defence Secretary, actively funded and afforded patronage to hardline Sinhalese outfits like the Bodu Bala Sena and the Ravana Balaya, while also nurturing Thawheed Jamaa’th operatives using funds allocated to the Defence Ministry. Candidate Gotabaya’s own spokesman confirmed these facts on national television during a political debate.
To date, Gotabaya Rajapaksa continues to offer patronage to hardline monks spewing hatred and violence against minority communities. On October 7, as Rajapaksa left his Mirihana home to file his nomination papers, it was the leader of the Ravana Balaya, Iththakande Saddhatissa Thero who presided over Buddhist religious rites at the residence to invoke blessings on the SLPP candidate.
By offering patronage to Sinhalese extremist groups on the one hand while nurturing fundamentalist Islamist groups on the other, Gotabaya Rajapaksa executed a policy of running with the hare and hunting with the hound. The Bodu Bala Sena and Ravana Balaya doctrines gave rise to several anti-Muslim riots in the south, bloody and brutal pogroms that became fertile breeding grounds for groups like Thawheed Jama’ath and individuals like Zaharan Hashim to recruit followers and plot violence.
Easter Attacks: The Launch Pad?
By accident or by design, the monsters Gotabaya Rajapaksa nurtured during his tenure as Defence Secretary, propelled his presidential bid. The Easter Sunday attacks carried out by the NTJ increased the clamour for a “strong leader” to crackdown on terrorist outfits and make the country safer.
When political leaders across the political divide were pleading for unity and calm, the former Defence Secretary stoked the people’s fears, declaring that had he been in charge of security, the attacks would have never happened. Less than a week after 258 people had been killed in the Easter bombings, Rajapaksa declared his intent to run for president, pledging to make national security and cracking down on extremism his priority. While a nation was in deep mourning, emotional and angry, the former defence secretary used the restive climate to further his political ambitions.
In fact that Report of the Parliamentary Select Committee appointed to investigate into the Easter Attacks queries whether the attacks were part of a design to propel a particular candidate to the fore.
Since his presidential candidacy became official, things have only got worse.
Promise of Impunity
Launching his campaign in Anuradhapura, Rajapaksa proclaimed that he would ‘acquit and discharge’ military persons in custody. None of the military personnel in custody have been implicated in offences committed on the battle-field. They are accused of attacking and killing journalists, sports rivals or abducting political opponents and dissidents. Nearly all of the crimes these military men are accused of, reek of political motive. There is no rational explanation for why a Major in an intelligence unit would have an axe to grind against Lasantha Wickrematunge, Keith Noyahr or Prageeth Ekneligoda.
In 2017 the CID told the courts that evidence had come to light that Gotabaya Rajapaksa ran military death squads, to crackdown on political dissidents. These men were pawns, commandeered to commit crimes to achieve political objectives. The Rajapaksa regime put these soldiers in harm’s way and turned them into sacrificial lamb. Of course they must promise to discharge and exonerate them. To do otherwise could have devastating consequences for the former ruling family.
Candidate Gotabaya promises to acquit and free these military men, but he has no power to do so constitutionally. That is the sole domain of the judiciary. The same judiciary Rajapaksa hailed as independent when the courts threw out a writ application challenging the validity of his Sri Lankan citizenship. The same judiciary Gotabaya Rajapaksa hailed as independent and able to deal with the investigation of the Lasantha Wickrematunge murder in papers filed in a District Court in California.
The pledge that on the morning of 17th November, all the suspects implicated in the murder, abduction and torture of ordinary citizens who fell foul of a ruling regime, hints that Candidate Gotabaya is already threatening to exercise judicial power, or at the very least, intimidate the judiciary into complying with the wishes of the executive. The stage is already set for gross abuse of power and executive overreach.
An independent judiciary is a sine-qua-non of a democracy. The rule of law and due process guarantees equality to all citizens, enshrined in the constitution. The Gotabaya promise is to undermine the judiciary. His promise is to enforce the law as he pleases. His promise is to establish a system in which those close to him enjoy a special status – extending even to immunity for crimes.
The Writing is on the Wall
The conduct of Gota’s cohorts, even when not in power, is telling. Two civil society activists challenged the validity of his citizenship in a Court of law. His cohorts went on rampage issuing death threats on those activists. Such is the tolerance for dissent, or questioning of authority.
This is the kind of society the SLPP claims will usher in an era of development, prosperity and security. The pledge is hollow. The instability created by interference with the rule of law and the justice system will have ripple effects on investment promotion. A rotten human rights record will bring back a threat of economic sanctions and international isolation. Forcible evictions of the poorest in cities will widen gaps between the rich and the poor and create new fault lines and conflict, as marginalised and impoverished communities agitate. Markets will be manipulated. White elephant projects initiated. The public will be called upon to gasp in awe of the big roads and empty airports. None of this will be good for the economy. None of this will ensure stability. Development without rights and freedom – this is the Rajapaksa way.
Gota’s Economic (mis)management Record
The myth of Gotabaya Rajapaksa’s efficiency and management must also be challenged at the core.
Under his watch, Mihin Lanka was run to the ground.
The Rajapaksa Government decision to withdraw from the Emirates management agreement has left the national carrier in tatters, bankrupt and struggling to stay afloat.
Only months after assuming office as Secretary to the Ministry of Defence, Gotabaya Rajapaksa executed the controversial MiG-27 procurement for the Sri Lanka Air Force. Subsequent police investigations have found that monies from the Sri Lankan Government paid 28 million USD to a shell company in the British Virgin Islands, after claiming that the aircraft were being purchased in a Government to Government contract.
As Defence Secretary, Gotabaya Rajapaksa took away a lucrative business opportunity away from the Sri Lanka Navy, and handed it over to an associate running a shadowy private security firm. The Bribery Commission found the “contract” signed without Cabinet approval had resulted in losses of over Rs. 11 billion to the Sri Lankan state coffers and indicted Rajapaksa and others for the crime.
In 2013, as Secretary to the Ministry in Charge of the Urban Development Authority, Rajapaksa ordered the Land Reclamation and Development Board to fork out over Rs 80 million to build a monument for his late parents in Hambantota. He used the Sri Lanka Navy to construct the monument. The auditor general notes that from time to time, the LRDB doled out payments to the Navy for raw materials and construction work.
The ‘discipline and law and order’ candidate embezzled money from the Sri Lankan state, to finance a private tribute in his hometown. A multi-million rupee tribute. When investigators started sniffing around, Rajapaksa paid back half the money in 2016, after his brother’s fall from power. In 2018, the Attorney General indicted Gotabaya Rajapaksa and six others on charges of criminal misappropriation.
He makes history in the November 16 election as being the first candidate to stand for election to be President of Sri Lanka while on trial for corruption and embezzlement. These are not the acts of a disciplinarian or efficient CEO.
The Core Issue
All of these factors pale in comparison to the issue that is of essence at the election facing the country.
Citizens fought hard to win the freedoms and space to dissent in the 2015 election, going up against the juggernaut that was the Rajapaksa incumbency. Five years later the dominant discourse is about how it might be palatable to sacrifice those hard-won freedoms to the promise of economic prosperity and strong leadership. Decades down the line, citizens may realise they cut off their noses to spite their faces.
The failures of this Government have brought the citizenry to this desperate brink. Delivery on promises made in 2015 have left much to be desired. While there has been some progress on accountability, corruption persists. At a lesser degree, impunity continues. But frustration with the status quo should not drive citizens into the arms of a dictator. In the fight for systemic change, progress is incremental. Only if the space remains open to wage that battle for change, will change in the longer term be possible.
In some cases, democracies die slowly, in barely visible, gradual steps. But that is not the situation facing Sri Lanka today. The election of Gotabaya Rajapaksa as President of the Republic on November 16, will ensure that democracy will die abruptly, and to raucous, thunderous applause.
When we vote on November 16, let us remember that the price of democracy is eternal vigilance. Let us vote to defeat any prospect of a tyrannous Rajapakse Regime taking root in the soil of our nation.