Delayed IMF Assistance & The Fertilizer Ban: President Rajapaksa’s “Two Mistakes” That Pauperized Sri Lanka

By Jude Fernando –MAY 6, 2022

Jude Fernando

“Political necessities sometime turn out to be political mistakes.”- George Bernard Shaw

“One is punished by the very things by which he sins.”- Solomon Ibn Gabirol

Gotabaya Rajapaksa publicly acknowledged on April 4, 2022, that it was a mistake to delay asking for financial assistance from the International Monetary Fund (IMF) and to ban chemical fertilizers. This admission was a diversionary tactic in response to mounting demands for his resignation, designed to avoid responsibility for the grave consequences of his mistakes and failure to correct them. These two irresponsible policy decisions (“mistakes”) have directly contributed to the country now living its worst economic nightmare, reeling under extreme scarcity of food, medicines, fuel, and other essentials. Since the beginning of the current crisis, Sri Lankans have continued to experience increasingly widespread hunger, child malnutrition people dying on food queues, cases of suicide, the suspension of routine surgeries in hospitals due to the lack of medicine, school exams being postponed due to paper shortages, and refugees embarking on risky boat journeys to neighboring India due to hunger. All these are depressing indicators of a country that was once a net exporter but is now a net importer of rice and is soon likely to lose its high ranking among developing countries for its achievements in human development.

The most debilitating impact of the President’s two mistakes are the destruction of the country’s natural and human resources capacities to meet its needs and his failure to put forward a plan to at least increase the domestic food production. The ad hoc, ill-conceived, and belated policy shifts implemented to rectify the mistakes, has only worsened people’s struggle for survival and made the country vulnerable to undesirable foreign exploitation in ways unprecedented since its independence. Although I am not a legal scholar, I believe that President’s two ‘mistakes’ may have caused crimes against humanity,[i] violations of his social contract, and have undermined the nation’s security and sovereignty – the inevitable outcome of narcissistic incompetence. A combination of the surrounding circumstances and the serious consequences of the president’s errors provide sufficient grounds for impeachment, if not punishment, in accordance with the penal code and constitution, and immunity cannot serve as a shield from liability.

The two mistakes originating from the President’s authoritarian style of decision-making and his failure to heed the advice and warnings of subject specialists have inflicted catastrophic harm on the lives of the people and driven the country to unprecedented social and political chaos, making him accountable for his actions. Under the penal code, the offender does not have to intend to harm or contemplate that their actions may be harmful. A person needs only to understand what law they are contravening and the potential harm their action may cause for the crime to be punishable. However, despite the prior warnings and mounting evidence of the actual adverse consequences of his actions, the President did not change course. When he finally agreed to abandon these policies, the damage they had caused was irreversible, and the people became adamant in their demands for the resignation and imprisonment of the President and members of his regime, and for the confiscation of their assets.

The President’s two mistakes violate the social contract, one of the most revered moral principles of modern constitutions. The social contract is a pact where individuals cede their rights to a responsible authority to safeguard the collective good. In other words, the citizens renounce their right to execute the constitution and promise to turn this authority over to the sovereign. The citizens also agree to obey laws enacted by the sovereign. The crucial point is that the constitution is legitimate because it is a creation by collective authorship, meaning that the President does not own the constitution but must uphold it.

The President’s mistakes have violated his obligation to honor the social contract embodied in the constitution: to protect the rights of citizens to life, security liberty, and the countries resources to meet their needs, while maintaining order within the bounds of the law. Moreover, he has crippled the government’s capacity to serve the collective good of the people. Furthermore, the President has abused the immunities granted to him by the constitution in a manner that is inimical to the balance of powers in the system of governance.

The constitution grants the President almost total immunity from accountability. In the case of the fertilizer ban, however, he in his capacity as the executive president assumed a responsibility and function of a subject that had previously not been assigned to any government ministry. “According to Article 44(2) of the Constitution, the President may self-appoint himself for any subject or function not assigned to a ministry. Matters arising from such self-appointed functions are exempt from immunity, and judicial review may be initiated against the President.” A case for judicial and parliamentary review of President’s actions is stronger when we read the Article 44(2) in conjunction with the Article 35(3) of the Constitution. Moreover, the immunity conferred to President by the provisions of paragraph (1) of Article 35 shall not apply to any proceedings in any court in relation to the exercise of any power pertaining to any subject or function assigned to the President or remaining in his charge under paragraph (2) of Article 44.

According to Professor Sarath Mathilal de Silva, attorney-at-law,

“Immunity does not render acts committed, obligations assumed, duties breached, privileges and powers misused in law, a nullity; rather it merely shields makes the one with immunity from legal proceedings during the currency of that immunity, thereby ‘disabling’ others from commencing legal proceedings against him/her. However, if ever that shield is lost and the person loses that immunity, the person becomes liable to legal proceedings for any and all liabilities incurred during the period in which he had the protection of immunity.”[ii] 

De Silva’s contention provides compelling grounds for impeachment and judicial review, because the two policy decisions under review here are acts done qua President, and as such, are subject to judicial review under Article 126 (fundamental rights jurisdiction), and they are not acts committed under his personal capacity that grants immunity under the Article 35(1) of the Constitution.

In this legal context, it is highly likely that the President and his administration have failed to adhere to the law and conventions in the enactment and dealing with the consequences of the fertilizer ban and managing the country’s fiscal problems. In such circumstances, the parliament may pass a resolution alleging that the President is “permanently incapable of discharging the responsibilities of his office due to mental or physical illness, or that the President is guilty of” one of the offenses outlined in five sub-paragraphs of Article 38(2)(a). The impeachment argument is compelling if it can distinguish between the person and his mistakes as acts of the President; the latter is subject to judicial review.

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