Dilrook Kannangara

On November 14, 2023 Sri Lanka Supreme Court found Gotabaya, Mahinda, Basil and a few others have breached public trust owing to their mismanagement of the economy from 2019 to 2022. The general public has not been educated sufficiently on the facts of the case. News media were too lite in reporting the gravity of the case. In fact, the gravity of the decision is yet to sink in.

The main thrust of the case is that the persons mentioned above were found to have violated the principle of equal rights (Article 12(1)). This is a very serious violation of the Constitution.  

Article 12(1) states, All persons are equal before the law and are entitled to the equal protection of the law.”

This is what sets Rajapaksas (and others) found guilty by the Supreme Court apart from other politicians who have also committed many crimes. Other politicians were not in a position to violate equal rights of citizens.

Supreme Court also referred to Article 27 of the Constitution, particularly Articles 27(1) and 27(2). Although the executive president has wide powers, they too are guided by Article 27(1) of the Constitution. They have no power to disregard their obligations of Article 27.

The decision states that the mismanagement of the economy by Rajapaksas (and the others) led to a total breakdown of economic and social life of the entire society. Such breakdown ultimately led to the collapse of the public order and the complete undermining of the rule of law.”

This is yet another very serious offence that sets them apart from other offending politicians, insurgents and other disruptive elements. None of the other elements caused a total breakdown” of the economy or social life of the entire society”. Their actions affected a section of the society and caused some disruption of economic and social life. Never a total breakdown” affecting the entire society”.

That’s not all. It was their mismanagement of the economy that ultimately led to the collapse” of the public order and the complete” undermining of the rule of law.

Once again other actors, political and militant, never managed to collapse” public order through their actions. They only managed to disrupt public order. Further, no person or group ever completely” undermined the rule of law. Violent actors only managed to undermine the rule of law in limited instances.

The court dismissed Rajapaksas’ defence trying to attribute their actions (and inaction) to policy decisions.

The court emphasised that they possessed the authority and knowledge to prevent such an outcome but failed to act in the public interest. The cumulative actions and inactions of the respondents (Rajapaksas and others) were identified as key contributors to the economic debacle.

27. (1) The Directive Principles of State Policy herein contained shall guide Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of Sri Lanka for the establishment of a just and free society.

(2) The State is pledged to establish in Sri Lanka a Democratic Socialist Society, the objectives of which include –

(a) the full realization of the fundamental rights and freedoms of all persons;

(b) the promotion of the welfare of the People by securing and protecting as effectively as it may, a social order in which justice (social, economic and political) shall guide all the institutions of the national life;

(c) the realization by all citizens of an adequate standard of living for themselves and their families, including adequate food, clothing and housing, the continuous improvement of living conditions and the full enjoyment of leisure and social and cultural opportunities;

The Supreme Court decision can be found in the following link.

http://www.supremecourt.lk/images/documents/sc_fr_195_and_212_2022.pdf

There is another powerful reason why the actions of Rajapaksas and their associates caused total breakdown” of the economic and social life of the entire society”. There were no checks and balances. Established checks and balances were also breached. The parliament, executive president and the Cabinet are kept separate for a good reason. It is the principle of segregation of duties essential to correct government action when it goes awry. However, it cannot happen when the president, the head of parliament (the prime minister) and the most powerful ministries of the Cabinet are held by three brothers (plus more of their own family). This has not happened in any other country, not even in North Korea for good reasons; segregation of duties is essential for any organization to function properly, even a charity.

Supreme Court decision clearly debunks the theory that there was an external conspiracy that led to the complete undermining of the rule of law. The decision states it was the actions of the guilty parties that caused it. Anecdotal evidence supports it. Rule of law vastly improved almost immediately upon the replacement of the said guilty parties. If fueled by an external conspiracy chaos won’t end abruptly (as can be seen in other nations where there were external conspiracies to disrupt them). People in Sri Lanka and armed forces were measured and reasonable in their action though a small number of them exceeded their limits on two days of violence.

The decision must serve as a reminder to future politicians that they too will be found at fault if they follow Rajapaksas. Article 27 of the Constitution should be their only guide in governing the nation. They cannot have their own policies, chinthanaya” or priorities that are not consistent with Article 27.