Crisis to recovery in Sri Lanka: Notes on transition arrangements towards accountable governance

While the people have created the space for radical re-imagination, an orderly pathway towards any change should run through constitutional order

 

Tuesday, 3 May 2022

This is a brief note pulling together different strands of opinions on transitioning out of the current political impasse. The #GotaGoHome has ushered in an unprecedented opportunity to imagine a new Sri Lanka, which will necessarily be a long process. This note though deals with the more pressing concerns of how the immediate transitioning out of the political crisis could be operationalised. 

Time is obviously of essence given the tough decisions that need to be taken to work our way out of the economic devastation that has been caused. This note therefore tries to make sense of and reflect the concerns, principles and demands articulated by different groups – those protesting on the streets, participants at civil society forums as well as subject matter experts – that I have heard over the past couple of weeks. This piece, first put together to inform conversations on transition, reflects these different views on what a way forward in the short term could look like. 

Firstly, the way out of the current crises should ideally be based on a set of principles. What we have is an unprecedented culmination of multiple crises and negotiating out of it will require that we anchor them to a set of values and working principles. Below are some of the key principles:

a. This is an economic crisis brought on by malgovernance. Therefore, governance reform and economic reform must go hand in hand. They must be based on a shared set of values. 

b. The long-term sustainable path out of the crises depends on human development and that should be central to any recovery plan and reform exercise. 

c. Sri Lanka’s ethnic, geographical, gender, religious, economic diversity must be taken into account in any recovery program. A ‘one size fits all’ approach will not suit.

d. Except for clear and justifiable reasons, decision-making in the realm of governance and policy making (including economic policy) must be transparent and consultative.

e. Appointment of experts (domestic and international) must be a transparent and reasoned process. Expertise must be justified by any public authority. ‘Expertise’ cannot be a smoke screen for loyalty to a political party or friendship and should not be to serve as a mere rubber stamp.

f. Democratic space, constitutional order and rule of law must be maintained throughout the transition and beyond.

The economic recovery is going to be a long and painful one for most Sri Lankans. The current situation is a result of mis-management by successive governments and aggravated by the recklessness and negligence of the current government. We have both a liquidity crisis and a solvency crisis with poor international ratings. Seeking IMF assistance currently is inevitable to ensure that basic needs are met. International experience suggests that this is necessary but not sufficient to ensure sustained recovery. If left to play its course, it will disproportionately impact on the lower stratum of the society and may alter the economic relationships in a manner not beneficial for vast segments of society. Therefore Sri Lanka must plan and present its own vision and mission for the path to recovery that is equitable and provides hope and dignity to all Sri Lankans. 

Negotiations with the IMF must be based on such a people-centred plan. Sri Lanka and Sri Lankans must own this plan and it must be one that advances human development and one that ensures sustainability (including of our natural environment). In the short run we will have a narrow pathway prescribed by IMF to get out of this crisis. This will consist of agreeing to and following through on standard IMF recommendations. In this regard the following actions, it is understood will be required and some are underway already

g. Appointing a credible team of economic and legal advisors to negotiate with lenders and empowering them to negotiate on debt restructuring with lenders and with IMF. Any such negotiations must be on the basis of agreed upon principles and should reflect a people-centred recovery plan to be developed and endorsed by the parliament. 

h. Putting in place an independent communication mechanism and sharing the economics related developments transparently with the public – a dedicated media/communication unit that is based out of Central Bank/Finance Ministry that is independent of the propaganda machinery of any government. 

i. A mechanism for listening and consultation – where different viewpoints could be articulated, particularly those who will be disproportionately affected by the decisions – which should inform policy formulation and revisions based on real life impact throughout the recovery period.  

j. An Agreement on key parameters of a preliminary economic recovery plan between the political actors taking into consideration the inevitability of some hard decisions and requirement for strong safeguards to protect vulnerable groups. 

k. [more specific economic mechanisms to be covered in a different note dedicated to economic processes]

A necessary condition for economic recovery is a stable and constitutional government that enjoys domestic and international confidence. While experts can be brought in to advice democratic practice requires that the elected political leadership should deliberate on options, carry the burden of decisions and face up to people’s verdict eventually. 

l. Some preconditions/principles for this political formation are 

i. Any political arrangement that has the incumbent Executive President/Prime Minister at the helm in the current manner cannot be part of the solution – that goes against the basis for the ongoing people’s struggle and will not pass muster in the current context. Resolving the impasse between the government that is in most part responsible for the current devastation and the voices on the streets of suffering masses requires this step. 

ii. Any political arrangement should be established within the current constitutional parameters – going outside the constitution, even in the current context of overwhelming public displeasure, is bad and dangerous precedent. While we have great disillusionment with the political class expressed in the streets and against agglomeration of power in one position and one family, it certainly does not lend itself to be interpreted as a revolutionary moment to jettison the prevailing constitutional order in toto. 

The consequences of such a course of action would not be good. While the people have created the space for radical re-imagination, an orderly pathway towards any change should run through constitutional order. 

iii. Any transition arrangement should have a clear end point to seek people’s mandate at the earliest possible time (eg.  an election no later than in one year’s time, etc.). While one may imbue the protests with different meanings, legitimacy for any formation in a democracy cannot be established without elections. Elections, parliamentary and provincial, should not be delayed any longer than necessary. 

iv. Any technical experts should be appointed as advisors that political decision makers should consult with rather than be brought into the cabinet/government. Under exceptional circumstance two or three may be brought in through the national list after first being appointed as MPs. While technical expertise could be sourced by political decision-makers, political leadership and responsibility cannot be delegated to technical experts in a democracy. 

Particularly not in a situation where the economic recovery journey that we are embarking on will require the decision makers to make some hard calls of a political nature right through the process. These don’t have readymade technical solutions and solutions to many of these are necessarily a political bargain between competing and at times inter-temporal interests. Weighing up the trade-offs is an inherently political process given how the forces are aligned.

  Given the above a potential way forward for a transitional political arrangement and comments on the decision space include the below. This is a space in flux given the political manoeuvring and dynamics currently underway and any response will have to be calibrated accordingly.

v. The first step should be the resignation by the President and stepping down of PM. Sri Lanka is experiencing an unprecedented people’s movement. The message of this movement is clear – The President, the PM and the Rajapaksa family should step away. This is a public message that no one can ignore. This is the preferred course of action in response to #GotaGoHome calls and to have a fresh start to shore up internal and international confidence. The PM’s legitimacy is dependent on majority in the Parliament. 

In a way the legitimacy of the President too currently is tied to maintaining the majority in the Parliament. As the streets hold strong on #GoHomeGota, testing the majority through no confidence motions will be the way to go if the incumbents are reluctant to leave on their own accord. The longer they stay the greater the opposition is bound to grow. Hence the critical constituencies internally – key players in the government, ruling party, senior civil servants, civil society, business leaders, etc. – should rally around with the protesters and make their views known. 

The international pressure – currently muted and limited to statements on allowing peaceful protests and democratic space – is also bound to play a part in this regard. If the President resigns the Parliament should elect a suitable candidate among its members for the position. In the event he doesn’t or drags out the decision, follow the measures in point (iii)

vi. Take immediate measures to abolish Executive Presidency. The issue of a referendum may arise. While that is a matter for the Supreme Court to decide, this reform is central to any transition plan. It should also be noted that a referendum, if required can and should be carried out. People, will no doubt, welcome the opportunity to participate in this effort at reform. Abolishing the Executive Presidency can no longer be postponed. 

In the past, Sri Lanka’s elected representatives having promised to do so, have gone back on this on several occasions on this reform. They have obtained the people’s mandate for this reform but failed to implement it. The people are suffering due to this failure and Sri Lanka is unable to move forward with urgently required reforms due to this office. This is not a reform measure that can be postponed any longer therefore the minimum condition should be to set motion an irreversible process for the abolishment of Presidency.

vii. Immediate roll back of 20A and bringing back modified 19A by way of a 21st Amendment. If (i) was not agreed to and (ii) is not feasible in the short run this step should be far reaching enough to make the Executive President subordinate as much as legally possible in practice to the parliament. And this should be done simultaneously with measures to abolish the Presidency (under ii) which conceivably could take longer. 

viii. The next step will be to appoint an interim/caretaker/unity government. While it could take any of the mentioned forms depending on agreement between parties in Parliament, it should preferably take office after passing a no-confidence motion against the current government or on the voluntary resignation of the current PM.

1. There are two conceptions of the interim/caretaker/unity government. 

a. Given collective responsibility and conventional parliamentary democracy one approach is to invite the main opposition to form the government. It can either seek a majority together with some of the other parties or run a minority government based on certain agreements with main political formations in the parliament for a year. The prerogative to appoint ministers and assign portfolios will be with the main opposition that will also field the PM candidate. 

b. The second conception is to have an all party/unity government consisting of all or as many parties in parliament working to a common minimum program. For example this government could consist of around 15 ministers ideally made up of consensus candidates from those parties that are agreeable to come into the government. 

Here again those that are not willing to join can remain outside and function as an opposition. The PM could be drawn by consensus from among the members of the parliament. Paying heed to the popular discontent of the people’s movement any such arrangement should be without any Rajapaksas in the government. 

2. Except in the instance of a Unity government with all parties represented one some pre-agreed basis – given the relative strength of political party in the current parliament the stability of any incoming government will be an issue. In the short term some negotiated stability could be achieved through some common minimum programs, but given the contentious nature of the issues that will have to be dealt with in the recovery journey by the incoming government, going to the polls and getting a mandate will be crucial to bring in greater stability. An agreement on an election date therefore should be part of any arrangement. 

3. The interim/care taker/unity government has to prioritize economic recovery according to an agreed upon plan based on principles stated above and endorsed by the parliament. 

4. In addition to the necessary ministries like defence and foreign affairs the interim/care taker/unity government to consist predominantly of portfolios that are key to and designed for economic recovery and safeguarding of vulnerable populations. (E.g. Finance and Planning, Power and Energy, Trade and Export Development, FDI, Agriculture, Fisheries, Education, Health, Social Welfare, etc.)

5. The interim/care taker/unity government to consist of two or three ministers responsible for putting in place a strong governance mechanism who will prioritise and work on a limited list of identified governance reform areas as well as accountability measures and processes. This may include Justice Ministry, Ministry of Law and Order and Ministry of Parliamentary affairs

a. Working on necessary legislation for campaign finance, asset declaration, women and youth quota in nominations, etc. that improves electoral systems

b. Working on necessary legislation on Proceeds of Crimes, Stolen Asset Recovery, etc. and strengthening anti-corruption investigative and prosecution mechanisms to hold perpetrators accountable

c. Working on repeal of Prevention of Terrorism Act

d. Working on constitutional reform, independent commissions, reform of Attorney General’s office

e. Working on special oversight and accountability mechanism on investigation of large scale corruption and abuse of power

f. Working on a narrow set of legislation that provides limits to state power and confers more power to people and increases accountability of the government (more laws like HRC, RTI, Right to Privacy) 

6. Establish Sectoral Oversight Committees and invite/involve independent experts into the oversight process. 

7. Since the public confidence in the Parliament – a product of the current system – is at a low level, establish/strengthen independent mechanisms and commissions to hold the government accountable. This could be by way of bringing back the features in the original 19th Amendment in this regard with balance of power between competing political forces and independent experts in these commissions to ensure independence and work against parochial party politicisation. 

Ensure clear process guidelines are also instituted for the functioning of these independent bodies and their mandate expanded to commission and recommend to parliament reform to the respective sectors (Police, Civil Service, Judicial Service, etc.)  

8. Seek the resignation of all the political appointees in government ministries, departments and SOEs. Any and all public appointments including to ministries, universities and public corporations must be based on justifiable reasons. Discretion in making these appointments can only be exercised for the relevant purpose. 

The reasons must be issued as a public notice before such appointments are confirmed, giving reasonable time for anyone to make a reasoned objection, publicly, to such appointments. Discretionary power should not be abused.

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(B. Gowthaman is an Attorney-at-Law. Dr. Dinesha Samaratne is a Senior Lecturer in Law, University of Colombo.)