Common good constitutionalism for Sri Lanka: The impossible dream?

Arnold Toynbee, author of ‘A Study of History’, famously observed that civilisations die not by murder but by suicide. If the country’s millennia old civilisation is to perish, it will be by suicide at the hands of the political class, abetted by its clerical and political supporters, and the cyanide capsules will be nepotism and its by-products.

How can it be that the political class devoutly believes and unfailingly acts upon its belief that State resources and State appointments are theirs for the taking? If one traces a chain of causation, the starting link is nepotism that has bred this particular mindset. Throughout the country’s post-independent history, the laser focus of those entrusted with governance has been on enhancing the welfare of their family, a focus for them that has been blinding as the burning sun. That has to change if the country is to pull itself out of the present misery.

As much of the country is saddened by the news of the preventable death of an infant in Haldumulla whose parents could not find fuel for a three-wheeler to take them to hospital, a shameless group of losers has hitched a ride on the backs of the idealism of youth of the Aragalaya to cabinet positions as a part of the putsch engineered by a despised President to remain in office, determined to whitewash his reputation as a miserable failure, serve the rest of the term supported by a cabinet of retreads, and to hell with the country and its people. Despite the twitter-storm unleased by the American Ambassador who swoons over the “interim cabinet” like a lovesick teenager, the vast majority of Sri Lanka are disgusted by a cabinet consisting of many who are unable to handle their own obsolescence.

Instead of working on a Sri Lankan version of Bolsa Familia to relieve the grinding poverty and desperation of the majority, the priority is on retaining privileges. Competent as he may be, the prime minister will be checkmated by a president who will remind him, as he does seem to need reminding, that he was rejected by his own electorate while he, the president, was supported by 69 lakhs. The rubbish that he has compelled to include in his cabinet and defend their inclusion shows who is still calling the shots in this semi-presidentialist system.

The prime minister’s idea of giving a boost to the critical tourism sector was to assure would-be tourists that they could join ongoing protest movements. His defeat in a safe seat does not make him the ideal person to give the Sri Lankan equivalent of the “Blood, Toil, Tears and Sweat” speech to the dry cinder environment that prevails in the country. The cabinet consists of a health minister indicted for corruption by a commission, headed by a former attorney general and supreme court judge, and all he can do is to boast about his luxury vehicle. His colleague, an extortionist, sentenced to two years rigorous imprisonment is defended by the prime minister, who in his unique understanding of the law, argues that a convicted person is presumed innocent until all appeals are exhausted. 

Under this brilliant re-stating of the law, Harvey Weinstein, Raj Rajaratnam and a whole group of serial killers should have been allowed to roam the streets until their appeals were exhausted. Soon a former health minister who should have been convicted for culpable homicide for the deaths of many induced by her endorsement to drink a syrup concocted by a charlatan might join the cabinet. A president who just announced his decision to serve the rest of his term and who has added dozens of institutions to be managed by his ministry of defence heads the “interim cabinet”. At this time, only a people who believe that the governing class is willing to share their hardships will support the inevitable austerity necessary to put the country back on track. Only a cluelessly insensitive American ambassador could inflict such tweets on a people weary of the worthies in this Potemkin Village “interim cabinet” and its president whose supposedly Midas touch has turned gold into dust and ashes.

To avert the looming conflagration, the Ambassador and her fellow Western ambassadors should encourage (a) the president to declare that he would henceforth exercise only those powers associated with a ceremonial presidency; (b) to form a cabinet headed by the former speaker; (c) a small cabinet drawn from all parties, dedicated to economic recovery and care of the poor, with no state ministers. Ministers must have proven skills and not be tainted by corruption or be included because of their political importance. A slimmed down cabinet will have no room for the upkeep a Ministry of Buddha Sasana funded from near bankrupt coffers; and (d) renunciation of all perks and privileges currently enjoyed so that the people can relate to the cabinet. 

A short list of economic objectives and poverty alleviation measures should be published so that the people can get behind an interim measures. Persons whose defining characteristic is an insatiable cupidity must have no place in this interim cabinet. The lifespan of this cabinet should not be more than one year. It is only then that the people will realise that “we are all in this together” and work to pull the country away from the economic and social abyss. 

Some quarters rhapsodised over the appointment of the prime minister and spread the word that he had a duplicate key to Fort Knox and that the Port City would soon be groaning under the weight of containers of gold bars from Fort Knox that would be unloaded there. Instead of gold bars, Bangladesh has promised to gift potatoes to a hungry public that lacks cooking gas to cook them. 

The ambassadorial tweets, if there are to be more, should demand an end to corruption and nepotism, and early elections. Meanwhile a prolix draft of a 21st Amendment, distracts politicians from the urgent crisis. Expecting the speed-bumps proposed in this draft to cure the ills of the country, is like expecting kola kenda to reverse a stage 4 cancer. Only a root and branch eradication of nepotism and its resulting evils such as waste and corruption can reduce the continuous tragedies that befall the land. 

The political class of all stripes is responsible for the socio-economic exhaustion that has brought the country to its knees. A vivid illustration of the country’s predicament is found in the widely distributed clip of the son of an opposition MP and himself a former UC chairman abusing in the choicest filth a policeman who merely did his duty by preventing him entering the highway with a dangerous load. The OIC of the police station subsequently complained to court that his house has been threatened with arson should the station dare to investigate this incident. The MP father of the individual gave a full throated defence of his son’s behaviour. Does anyone doubt that one day this individual will succeed his father in entering parliament? 

A previous cabinet, truly interim, consisted of cabinet ministers who were sons of previous ministers. The Leader of the House has brought his son into parliament through the national list. One does not need to study Aristotle’s Virtue Ethics when the tech mantra, “GIGO” (“Garbage In, Garbage Out”) explains it all. That children of politicians who cannot find a day job in the corporate sector will make good and honest legislators is a part of the extraordinary mythology that has deluded the people. 

How can the country rid itself of these parasites? The remedy is simple but not easy. If one start with the question what motivates those who can’t find a day job to take to politics, the answer is staring in the face. They are the access and enjoyment of the 3 P’s, Power, Perks and Privileges. No Einstein is required to explain the consequences for the country when impunity is coupled with power, when liquor licenses and government contracts kickbacks are there for the taking, when duty free permits to import luxury cars are promptly re-sold for massive profits, and where a senior politician is allowed to treat the national game parks as his private property by intimidated park officials. This is the oxygen that sustains this despicable lot. The challenge is to remove it. The project will be arduous but just as an elephant is eaten bite by bite, the Augean Stables must be cleaned section by section. The areas requiring urgent attention are nepotism, corruption, waste, and fraud. 

On 22 July 2022, a US federal court will sentence Jaliya Chitran Wickramasuriya, a cousin of the president and the former prime minister. This former ambassador of Sri Lanka to the US pleaded guilty to diverting and attempting to embezzle $ 332,027 from his very own government during its 2013 purchase of a new embassy building in Washington, DC. Not a word of apology from the former PM for his role in appointing his cousin who has brought shame to the country nor by the President for the futile efforts by his foreign ministry to reassert diplomatic immunity which was derisively rejected by the American government. 

As a measure of the arrogance of the clan, yet another sub-literate first cousin was concurrently appointed as ambassador to another permanent member of the UN Security Council, Russia. Countries send their best and brightest to Washington and Moscow. Those entrusted with mounting a defence of the country against allegations of war crimes, on the other hand, behave like Caligula, who appointed a horse as consul, by sending their equine cousins to key capitals of the world.

The clan from the South will occupy the prominent spaces in the pantheon of nepotism and corruption. One brother of the local Marie Antoinette, who saunters around with her “let them eat cake” expression, was made the CEO of the national airline where he treated the aircraft as if it were it personal Lear jet fleet. His mismanagement cost the airline billions in public funds. The Weliamuna Report provided the excruciating details of the losses to the airline caused by his vile malfeasance. Under the company law, the succeeding board of the airline in 2015 should have sued him for recovery of enormous losses caused by his breach of director’s duties. Instead, the report was swept under the carpet and the way was paved for the appointment of yet another brother as the present High Commissioner to the Seychelles. 

The husband of a presidential cousin, according to the Panama Papers, has a treasure trove in Switzerland. Examples of clan’s nepotism can fill volumes. The tax department cannot be bothered to audit those with unexplained wealth. Suffice it to say to those who believe that such wealth is honest that unless the investing skills of the clan members make Warren Buffet seem like a novice trader, their prosperity can only be explained by nepotism with its corrupt fruits such as kickbacks and commissions. 

While the grandmasters of nepotism hail from the clan, it must be acknowledged that very few in power have resisted the temptations of nepotism. The clan caused the gargantuan financial losses to the country by nepotism but many others coarsened the country’s values by nepotism so that it is now claimed as it were an unquestionable privilege of those who run the country. Nepotism made its appearance early in the country’s independence. Lord Soulbury, in clear violation of the rules relating to the use of the royal prerogative, agreed to and implemented the succession directives of the first prime minister after he died in an accident. Soulbury’s illegal decision pushed the country into a particular direction, the effects of which are still felt. Just as genocide against indigenous peoples and slavery were the original sins of America, the consequence of which are still being felt, so also is nepotism the original sin of post independent Sri Lanka that has caused such massive losses to the country and the people.

The previous president converted the claim of good governance into a joke the moment he appointed his brother as the head of Sri Lanka Telecom. The icing on this particular cake was when he included his son in a delegation to the UN ejecting the country’s permanent representative. But it is a mistake to think that nepotism is a badge of the uncouth and under-educated who if not for their luxury vehicles and the fleet of security details can easily be mistaken for wannabe three-wheel drivers. 

The double doctor, known for his golden brains, when he became the Minister of Finance lost no time in appointing his brother as the head of the National Savings Bank and the husband of his niece as the head of the National Gem Corporation. Even the first executive president who uniquely shunned dynastic ambitions appointed a slew of relations to state posts, the most abysmal being the husband of a niece as the head of the Board of Investment.

Just as the anti-bribery laws have done little to rid the country of the orgy of corruption, an ordinary anti-nepotism law will be full of loopholes and be easily by-passed. Instead, the right of the sovereign people to not have their resources plundered to fund nepotistic practices must be enshrined in the constitution with a corresponding right of every citizen to challenge nepotism and overturn nepotistic appointments. In successful actions, the complainant must be entitled to legal fees set by the court. A constitution addressing the curse of nepotism must have general provisions but must have detailed supplementary provisions covering the areas of diplomatic appointment, state-owned enterprises, waste and government procurement. 

Diplomatic appointments are the most visible arena in which nepotism thrives and where it should have no place whatsoever. The first female prime minister, despite lacking a tertiary education, grasped the importance of soft-power and appointed top class persons to diplomatic positions. Her diplomatic triumphs were the Sirima-Shastri pact and getting title to Katchaheevu Island and its resource rich waters, now in grave danger of being given to the Adani Group on a 99-year lease in return for bridging loans from India. It has been downhill ever since. 

At present, children of politicians, including the daughter of an opposition front-bencher and a child of a minister, occupy low level diplomatic positions which should be held by career foreign service officers. The second executive president appointed his brother-in-law as an ambassador to a Nordic country. The fifth embarked on an uncontrolled spree of such appointments not only of members of his extended family but also family members of his henchmen. 

Just because under-educated leaders think that these appointments are harmless does not mean that country is not harmed. When Sri Lanka’s human rights record is under scrutiny, ministerial pontificating is no substitute for subtle behind the scenes bargaining by experienced diplomats. Nepotistic appointments in foreign missions should be cancelled forthwith to signal that there’s a new sheriff in town. 

If the precariously flickering flame of what’s left of Sri Lanka’s civilisation is not to be extinguished, the executive presidency should, when the situation is stabilised, be abolished by an amendment or a new constitution, those who are in parliament must face the people in an election as soon as it is feasible to hold an election, and the foundational reasons of nepotism, corruption, waste and cronyism for the country’s penury be addressed and remedied. The fig leaf of the breathless tweets of the American ambassador might give her an adrenaline buzz about the worthies in the new interim cabinet but does nothing to show that she cares about the suffering millions. 

If the country is not to be engulfed by an enraged people who feel helpless because peaceful avenues of change are denied by this “interim cabinet” who provide the crutch for a discredited president to remain in office with his self-image of a brilliant success intact, the peaceful lines for petrol and cooking gas will not remain peaceful for long and the tinder box that is present Sri Lanka will be ignited.

The Sri Lankan people can be likened to a brilliantly coloured tropical fish desperately trying to dislodge the hook in its mouth cast by the rod of the political class. As it thrashes in vain to escape, this brutal class is determined not to let go whatever the cost to the country and its people. Adrian Vermule of Harvard, the foremost theorist of common good constitutionalism, argues that common-good constitutionalism promises to expand and fulfil, in new circumstances and with a new emphasis, a constitution’s commitments to promoting the general welfare and human dignity of all. 

Overall, this constitutionalism will become more direct and more openly moral. Nepotism is its polar opposite of common good constitutionalism. Sadly though, despite the lovesick tweets from Horton Place, common good constitutionalism for Sri Lanka is still light years away from Sri Lankan permanent and interim governments of the corrupt, by the corrupt, for the corrupt.