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A ringing reminder by the Supreme Court this week holding three Rajapaksas (two former Presidents and a Minister of Finance) along with their economic tsars and a politically driven Monetary Board responsible for Sri Lanka’s calamitous bankruptcy, was that ‘the Rule of Law is not only rights and equality….(it) is also about functionality and efficiency for (the) sustainable economic development of the nation and all of its people.’

Politicians and the evils that they do

That awful pronouncement must surely make the political establishment, its avaricious panjandrums and the sundry collection of white collar parasites still feeding off Sri Lanka’s rotting carcass, shudder in their well heeled shoes. The instant decision is, in many respects, an interesting accompaniment to an earlier decision of the Court holding another former President (Maithripala Sirisena), his defence and police chiefs culpable for reckless failure to prevent the 2019 Easter Sunday attacks.

Indeed the sequence of events relevant to the disasters in point (2019 and 2022) speak to certain commonalities in their happening, Both cumulatively tipped Sri Lanka into an abyss from which there is yet no salvation, if there can ever be. In focus were two singularly catastrophic eventualities that called upon the Court to examine extraordinary situations of national distress.

Both were brought about by a vicious combination of an unquenched thirst for power and raw greed on the part of those once hailed as Sri Lanka’s saviours but whose actions, ironically, led to the ‘death’ of the nation as we know it. That was combined, we must not forget, with mind numbing personal and professional opportunism by a galaxy of men and women who stood by and said nothing, did nothing and heard nothing as the country died, ‘not with a bang but with a whimper.’

Children giving lame excuses

In fact, the justifications offered by politicians and their merry men (thankfully there were no women this time around) as to why the blame for Sri Lanka’s bankruptcy should not be laid on their shoulders, count to a considerable number of pages. I am irresistibly reminded of nursery games played by children where one points the finger at the other in order to escape.

One of the basic questions in issue was as to why early and remedial recourse was not made to the International Monetary Fund (IMF) without trotting out ‘homegrown’ solutions that existed only in the makers’ imaginations. From (then) Presidents to (then) Governor of the Central Bank to (then) Secretary to the President to (then) Secretary to the Treasury to the Monetary Board, the obscene charade of excuses is merrily recounted.

In dismissing these explanations, a four member (majority) Bench headed by the Chief Justice stepped out of the routine compass of the rights chapter, reading the Constitution as a ‘live’ document as it were in enforcing accountability on the part of decision makers. That is spelt out very clearly by the judicial observation that the right to equality (Article 12 of the Constitution) has ‘evolved with the passage of time.’

Where the Rule of Law (including ‘sustainable economic development’) arises, the judges will ‘provide a margin of deference to relevant decision makers in implementing national economic policies’ but consideration of the ‘public benefit’ will be uppermost. ‘Strenuous’ objections put forward by the Attorney General against judicial review of ‘economic policies’ were not looked upon benignly.

The State’s argument and its dismissal

Certainly, the two pronged argument put forward for the Attorney General made more sense than a litany of pitifully stumbling excuses advanced by the galaxy of private counsel jostling themselves to represent a former President, the (then) ‘top rung’ of the state’s financial leadership and the Monetary Board. These two prongs were formulated on well traversed lines.

Fundamentally, the ‘formulation of national policy is solely vested with the Central Government along with the ‘economic policy’ which forms part and parcel of the same. Thus, ‘mere disagreement with a policy is not a ground on which courts could review economic policy.’ Rather amusingly, the Court was pleaded with to refrain from acting as a ‘super auditor.’

The second prong was an unsuccessful attempt to revive ‘the political question’ doctrine. This draws strength from somewhat discredited thinking which proposes that the Court must hold back in cases where supposedly ‘apolitical’ decisions are made by the State with ‘diverse’ considerations in mind. Judicial remit, it is argued, is therefore limited to cases which are ‘mala fide, manifestly unreasonable or based on wholly extraneous and irrelevant grounds.’

For example, the Attorney General contended that former President Gotabhaya Rajapaksa’s ‘arbitrary tax reductions’ could be seen as disastrous by some (leading to the huge loss of national revenue) or beneficial by others (as a spur to rejuvenating the national economy). Whichever, the reduction or increase of taxes is a matter of policy that is ‘entirely’ within the purview of Parliament under Article 148 of the Constitution.

The Doctrine of Public Trust

However, in dismissing these arguments and claiming the power of judicial review over the acts and omissions in issue, the Bench pointed to the fact that ‘continued inaction and callous disregard’ had been evidenced by the Rajapaksa brothers along with the top tier of monetary and fiscal officials at that time. They had failed to take timely remedial measures despite substantive evidence showing the drastic decrease in government revenue. This had breached the ‘public trust.’

In effect, this violated the ‘co-relationship’ between Democracy, the Rule of Law and the ‘Doctrine of Public Trust’, given that  ‘there is no absolute or unfettered discretion in public law; discretion is conferred on public functionaries in trust for the public…’ Principles of openness, fairness and accountability are mandatory and decision-making should not be shrouded in secrecy.

These familiar reminders are bitter-sweet. Since their articulation close to three decades ago (Premchandra v Jayawickreme [1994] 2 SriLR 90 at 105), the Court has been remarkably inconsistent in holding to that standard. Regardless, it is cause for (restrained) joy that the Court saw fit to emphasise those timeless principles along with Article 27(1) of the Constitution (Directive Principles of State Policy) which  inter alia, requires the State to  realise ‘an adequate standard of living’ for citizens ‘…including adequate food, clothing and housing.’

The way forward for accountability

Other facets of this decision will be examined in these column spaces in the following week. Interestingly also, the Bench opined that the fundamental rights applications in issue should not be dismissed for failure to file within the constitutionally stipulated one month period after the alleged acts took place. The ‘continuing nature…’ of the violations was stressed given that to ignore this would ‘be to ignore any possible violations which may stem from these actions.’

Moreover, the fact that a Parliamentary Select Committee to look into the country’s bankruptcy had been appointed in January 2023 which was after the petitions in the case had been filed and after leave to proceed had been granted, was held not to preclude judicial review.  Compensation had not been asked by the petitioners and consequently was not granted by the Court apart from an order as to nominal costs.

Presumably this reticence by the petitioners acting in the public interest was because it would be impossible to quantify the enormous sufferings of the people due to the acts and omissions in issue. Even so, the Court’s findings may conceivably pave the way for individual citizens to claim that recompense in later interventions, based on continuing harm.

It is hoped that such public interest action will ensue.