by Rajan Philips Courtesy The Island

Troops in Washington

In Ranil Wickremesinghe’s parlance a cynic would probably describe the former president’s predicament as being the result of an L-Board arrest. Mr. Wickremesinghe himself might have described it as such had he not been weakened and silenced owing to excessive dehydration during and after his police questioning and long court hearing last Friday. As has now been extensively reported, the former president has multiple health issues which given his age would seem to have been concerningly aggravated by Friday’s ordeal. In the circumstances, the granting of bail for reasons of health is a healthy pause in an unfolding drama that has no script for its ending. Keeping Mr. Wickremesinghe in remand would have been pound-of-flesh meanness, with potential risk to his health and continuing headache for the government.

There have been plenty of commentaries on the political fallouts of the episode, but little has been and can be said about the legal precedents that may or may not ensue. While there is much to be said about the government’s amateurishness in the whole matter, it would be an exaggeration to suggest, in my view, that the arrest of Ranil Wickremesinghe is a portent sign of a threat to democracy or drift towards a one-party polity. While These interpretations are obviously far-fetched, what has to be conceded is that the government’s handling of the matter has created a huge and unnecessary distraction to its own agenda and has provided further ammunition to those who constantly question the NPP’s competence for governance.

Mayhem in America

As for the threat to democracy and the danger of a one-party polity, Sri Lanka is nowhere near what is unfolding in America under President Trump’s endless executive orders. Trump has declared executive war on the Federal Reserve, the American Central Bank, because its Chairman and Board are not reducing interest rates as the President wants them to be reduced. He is sending the military to American cities in Democratic states with African American Mayors purportedly to fight urban crime. And he is directing the FBI and the Justice Department to investigate those who worked in the Biden Administration and Republicans who have been critical of him for their alleged acts of treason. The investigations likely will go nowhere but their purpose is to subject the targeted individuals to public slander and force them to expend money defending themselves in investigations.

Yet for all of Trump’s excesses, and there are a lot more than what I have listed above, it would be an exaggeration to say that American democracy is in its death throes. That has been the Democrats’ party line, forever warning the Americans of Trump’s existential threat to democracy but doing nothing about it except getting the people tired of the leadership of the Democratic Party. But there is no denying the massive stress that the American institutions are going through as they respond to Trump’s executive orders and unconventional demands.

None more so than the American judiciary. The FBI and the Justice Department have become Trump’s weapons against his political opponents and policy targets who are mostly immigrants and minorities of all kinds. The judiciary, on the other hand, is torn between those who are constrained to fight Trump’s attacks on them and the government lawyers whose brief is to defend Trump’s actions in the courts.

The stress is especially on the lower tier federal judges who are the first line of defence for those facing the brunt of Trump’s orders. These judges invite Trump’s wrath if they rule against the government as most of them have been doing. The appeal courts are caught in between while the Supreme Court, with its 6-3 conservative majority, decidedly sides with Trump. The conservative judicial agenda is to expand the power of the unitary president over the legislature and the judiciary. That takes priority even if some of the conservative judges might be disgusted by the vulgarity of Trump’s actions. Chief Justice John Roberts has papered over them, calling them transient results and present  exigencies.

Sri Lanka is nowhere near the troubled state of the US either in regard to the attacks on democracy or the stresses on the judiciary. It is indeed a sea of calm relative to the political turbulence in America. For all his political assaults on institutions, the undoing of the Trump presidency, if at all, will be precipitated not by his politics but by his mercurial interventions in the economy. The deluge may come after him, but he is quite capable of hastening it a lot sooner than any other political leader.

In Sri Lanka too, it will be the economy that will determine the people’s ultimate verdict on the NPP and not the politically grand projects like Clean Sri Lanka or Constitutional Reform. The government has to keep the economy humming and keep essential goods in steady supply and at affordable prices to win the next election. The implementation of the grand projects will take more than one term, even two, and to complete them successfully the NPP will have to win not only the next but the next two elections. If the economy goes south, food scarcity returns and prices rise, the electorate is not going to reward the NPP for fighting corruption and arresting politicians who are well past their Best Before or Expiry dates.

Much Ado about What?

The arrest of Ranil Wickremesinghe has led to predictable reactions. Government ministers have been touting the precept that law should be applied equally to all citizens and that the NPP government is creating an atmosphere in which law enforcement will not exempt anyone. Wickremesinghe has become the government’s Exhibit A to illustrate the new enforcement regime. A victim of poetic irony in that he had in the past intervened to protect other politicians from prosecution in spite of promising to do the opposite.

To wit, the total betrayal of the yahapalanaya promises when he was Prime Minister and Maithripala Sirisena was President. Now, Sirisena and practically everyone else from the old parliament are now united in solidarity with Wickremesinghe. Yet there is no earth-shattering outrage against the arrest. While a majority of the commentaries are critical of the arrest in varying degrees, there are also a good number of voices that are more measured if not expressively supportive. These viewpoints fall along party lines and along established political alliances.

A common reaction across party lines has been bafflement. Why did the government, or anyone on its behalf, have to do this? Was he arrested merely to prove the point that under the NPP government law will be applied equally to all citizens regardless of their status?

L-Board in Colombo

Wickremesinghe is apparently the first President or Prime Minister to be arrested and charged with a crime. He could also be the first person in Sri Lanka, if not anywhere, to be indicted over travel and accommodation expenses. It is not uncommon for employees, whether in the public or private sector, travelling on official business to piggyback some private engagement involving additional travel or longer stay. Employees are reimbursed according to approved allowances for the official portion of the trip and pay out of pocket for any additional expenses for their private engagement. No one is accused of fraud or sent to jail over travel and per diem expenses. If anyone abuses the system they could be caught and dealt with administratively, including financial penalty, interdiction or dismissal. Not jail.

In the case of government ministers or heads of state, the disbursements will be large because of accompanying staff and security detail, but disbursements will have to be within approved allowances for specific purposes with full reconciliation at the end of the trip. The vaunted SLR 16.9 million that Mr. Wickremesinghe is accused of illegitimately overspending is not money that he or his aides had somehow pilfered from state coffers, or spent on his own and got reimbursed. On the contrary, from what has been reported it would appear that the disbursement has been assessed and provided through the normal back and forth process involving multiple agencies.

The point of contention is whether the London stay by Wickremesinghe on the return leg of an otherwise official travel to Cuba and USA, is private or official. Someone in police or the Attorney General’s office would seem to have determined that the London stay should be deemed private and, therefore, Wickremesinghe should be charged for a non-bailable offense on a Friday afternoon for a weekend sojourn at Welikada.

There is a bureaucratic saying: ‘this is above my pay grade”, to indicate that certain decisions are beyond the purview of officers at certain levels. Someone higher up must make the call. Not so, it seems, in Sri Lanka when it comes to dealing with a former president over his travel itinerary.

What is official or private conduct for an American president has been vigorously debated in courts and by legal scholars for the last four years. There is now a Supreme Court opinion on the matter which many disagree with but all abide by. And President Trump is the principal beneficiary of the Supreme Court ruling. Otherwise, he wouldn’t be president now. And he could be the only beneficiary in history. The ruling differentiates between and deems that all core functions of a president are absolutely immune from prosecution, there should be presumed immunity for conduct that straddles the official and the private spheres, and no immunity at all for conduct that is totally private.

But the debate is all about presidential powers and actions and not about air fare or hotel accommodation. No one is questioning Trump to pay for his weekend flights from Washington to his Florida club. Or for all the time he spends playing golf with full security paid for by the taxpayer. No one is suggesting a Sri Lankan president should be afforded all the luxurious perks of an American president. But whatever perks that Sri Lankan presidents might be availing themselves of, their entitlement should be determined in some proper way and not by officials acting above their pay grade.

There would have been some plausibility in taking legal exception to a London trip by Mr. Wickremesinghe if the trip had been solely for the purpose of accompanying Mrs. Wickremesinghe to a celebratory lunch at the University of Wolverhampton. Even then, it should have been more a socialite question, not a legal one, as to why Sri Lanka’s first couple would bother flying all the way to London town for lunch at a by and large nondescript institution. There is much political hay to be made of the fact SLR 16.9 million were spent when the country was struggling without food and fuel and the coffers were apparently empty to pay for local government elections. But arraigning in court – that is simply beyond the pale.

Ranil Wickremesinghe is perhaps the most serially defeated political leader in the country. Electoral defeats are an indication of people’s judgment on political parties and leaders for their acts of omission and commission. There will never be a specific correlation between a particular act and the voter’s verdict, but in the scheme of things elections provide a way of cleaning the stables for at least another four or five years. Defeat in elections should be punishment enough for political failures and there should be no need for prosecutorial follow through. This was the case in the stripping away of Sirimavo Bandaranaike’s civil rights by President Jayewardene. And it should not have been the example for the NPP government to follow with modifications in the case of Ranil Wickremsinghe.

Ironically, after the UNP parliament in 1980 suspended Mrs. Bandaranaike’s civil liberties, the admixture of executive presidency and the open economy created a political culture of impunity for abuse of power and corruption in government. This culture that was not there before 1977 went on to thrive for long after the UNP was gone in 1994. There have been multiple rebirths of the same old corrupt governments. Until now, that is, the NPP government might say with some justification.

The upshot is that electoral defeats may not be enough to deal with corruption in government. More so when criminal culprits, including two of them convicted for murder, who managed to win elections and find accommodation in government benches. So, there is much to do, plenty to investigate, and many trespassers to be brought to book. My contention is that the arrest, remand and the likely trial of Ranil Wickremesinghe over his luncheon date near London, has devalued rather than advanced the government’s mission of fighting corruption.

It may be that the government may have wanted to test the waters by taking in Ranil Wickremesinghe before going after others who are more capable of creating trouble on the streets than Ranil Wickremesinghe can ever be. Or it may be that someone in the police or the AG’s office decided to act above their pay grade. We can only speculate. Moving forward, the government may want to consider inviting independent lawyers, say people of high calibre from the unofficial bar, to review police files and findings involving political leaders and make recommendations regarding prosecution.

The government may also want to study the application of the Shawcross principle in criminal cases. Named after British Attorney General Hartley Shawcross, who formulated it in 1951, the principle is for the Minister of Justice or Attorney General to act independently in decisions regarding criminal prosecutions without pressure or direction from cabinet. The cabinet could be informed of such decisions but it will have no say in the matter. It is a delicate balance but life will be worthless without delicate balancing. The principle is assiduously followed in Britain, Australia, Canada and New Zealand, but I am not aware of its status in other Commonwealth countries including Sri Lanka. The NPP government may want to take a crack at it if only to show that it is serious about gaining competence in governing in addition to claiming honesty in politics.

by Rajan Philips ✍️