Shenali D Waduge

The Bar Association of Sri Lanka has presented a list of proposals claiming they will ‘restore political & economic stability’ in the country. While these are a set of ‘aspired’ goals, there is no pressing necessity to be implementing any one of the proposals unless they provide immediate solutions, which are the call of the hour.

The Executive Presidency is not the failure of the crisis but the blame can be pinned on the sitting Executive President if BASL presents points on where the sitting President has failed.

If BASL claims 20^th amendment is the reason for the current crisis – BASL may like to provide reasons for other economic crisis we have had in the past without 20^th amendment.

What is the ‘system change’ that can provide equitable governance?

The 19^th amendment re-established independent commissions. Instead of seeing unbiased actions, we saw an independent commission member run to Supreme Court to file FR showcasing his political bias. What is the assurance that BASL can provide that similar situations will not arise?

Can BASL explain what it means by a ‘common Sri Lankan identity’ respecting the ‘diversity of its People’. This looks like terms taken from western-backed NGO jargon.

There is nowhere that says Government MPs cannot function independently – in fact prior to 1978 constitution, a Government MP crossing led to a by-election and another MP getting elected. Ideally, the current proportional representation should change & first past the post system of electing MPs should be brought back. This will certainly end deal makers entering parliament.

Sri Lanka has been following parliamentary democracy & as such governments get elected and rejected through the ballot only. People’s protests are their fundamental right, but a precedence cannot be created by overthrowing a government by placards and protests. Their demands must be pressurized into implementation so long as they are valid and relevant to all citizens.

It is strange that the BASL are taking pains to promote only one western monetary institute for economic recovery & emergency financial assistance. Has BASL looked at the long term repercussions for the people from the conditions that Sri Lanka has to agree to obtain this loan facility? Is this the sole solution for Sri Lanka to gain economic stability? Is this loan to improve credit ratings so that Sri Lanka can entrap itself further by securing more loans?

Given that the BASL is also in agreement that ‘appointment of new Ministers will not’ resolve the present political instability, will a bi-partisan consensus without appointments happen in the current Parliament?

Will BASL proposal bring down the value of the Sri Lankan rupee & the queues or make available gas, petrol, medicines, essential goods & reduce power cuts.

The BASL has given 5 objectives in its proposal

1. Create political, economic & social stability
2. Create environment to address fundamental problems that led to the crisis & provide future reforms
3. Restructure external debt by entering multi-lateral institutions including IMF (BASL’s favored option) – appoint financial & legal advisors (opportunity for BASL)
4. Obtain bridging finance & using savings from debt standstill to procure uninterrupted supply of essentials until IMF program is in place.
5. Create environment to combat corruption & ensure accountability & strengthening independent institutions.

– None of the proposals provide an immediate solution except perhaps item 4.

BASL further presents a list of 8 proposals as Overarching Requirements” for a stable government – once again the BASL mentions IMF.

1. Actions to be consistent with Constitution & relevant legal instruments & the transitional provisions are purely to address the exigency of the situation & not a precedent – BASL says.

This first proposal and its message nullifies all of the proposals that have been made thereafter as the BASL says that what they are proposing are only ‘transitional provisions’ and are meant solely to ‘address the exigency of the situation’ and are not a ‘precedent’. Therefore, why go to pains to make out a list of proposals with so many major changes?

1. BASL proposes introduction of 21^st amendment & repealing of 20^thamendment & restoring 19^th BASL requests to maintain the present number of Judges of the Court of Appeal & Supreme Court. BASL says the Constitutional Council should be re-established as well as Independent Commissions. BASL is also proposing that the CC and IC are given ‘enhanced financial independence’ transparency & accountability.

If BASL proposals are only to address the exigency of the situation why propose 21^st a, repealing 20^th a, restoring 19^th a and even include number of judges and demand another additional expense in re-establishing Constitutional Council & Independent Commissions? With the current currency crunch why should CC & IC be given ‘enhanced financial independence’ – what is BASL implying? Should they be allowed to get external financial assistance directly? Will this not create conflict of interest?

1. BASL says that in addition to the provisions of the 19^tha, the 21^st a should give CC to approve the appointments of the Governor of CBSL and Monetary Board/ – appointments of Secretaries to Ministries/Governors/Ambassadors/Heads of Missions to be done on advice of PM in consultation with Cabinet – Presidential Pardon on recommendation by a body established by law appointed on recommendation of the CC.

On what grounds is BASL suggesting that CC choose the above positions, given that this very document constitutes BASL’s 21^st amendment proposals?

1. BASL proposes that after enacting 21^st a – all Secretaries to Ministries to be appointed & all independent Commissions other than Judicial Service Commission be reconstituted.
2. BASL says the President should not hold any portfolio (as per 19^th a)

If the President is Commander in Chief of the Armed Forces, why should he not hold position of Minister of Defense, when he is the one who has the right to declare war?

1. BASL says the Executive Presidency should be abolished in 15 months by Parliament on 30^th Nov 2022 (what about referendum asking the people) Executive Presidency to be replaced by a Parliamentary form of government, PM is head & Cabinet accountable to Parliament.

On what grounds is the BASL giving to abolish the executive presidency? When the people are the one’s that directly elect the President, why should that right be hijacked from the people without a referendum?

1. BASL is proposing to create an Interim Government of National Unity” consisting 15 Cabinet Ministers – PM to be a MP with a consensus of all political parties. If such does not arise, BASL is proposing that a National List MP resigns to bring an individual to be appointed as PM even if such an individual is not named in the list sent to the National Elections Commission.

We saw how the ‘Unity’ government under yahapalana functioned. The present proposal is attempting to parachute individuals outside of the parliamentary system and place them as PM. Who is the national list MP that will agree to resign? From which party is this national list MP to resign? How can an outsider be allowed to become PM of a country?

1. BASL wishes that this newly created ‘interim government’ consults with independent, apolitical professional/trade/civil society & appoints an independent Advisory Council of 15 qualified professionals for the 15 Ministries. BASL requires the Government to consult the Advisory Council on all ‘major policy decisions’.

 If the BASL proposals are only as transitional provisions and not precedents – why should BASL recommend that an a team of ‘civil society’ be appointed & the government has to consult them on ‘all major policy decisions’? Is this an attempt to plug civil society into politics?

1. BASL is next proposing to ‘rescind the Special Presidential Commission of Inquiry appointed by Gazette (Extraordinary) No. 2212/53 of 29^th January 2021 to implement recommendations & decisions of the Presidential CoI to investigate allegations of political victimization during commencing 8 January 2015 ending 16^thNovember 2019 appointed by Gazette (Extraordnary) No 2157/44 of 9^th January 2020.

With this – BASL has self-exposed itself. Why should BASL presenting a set of proposals to bring economic & political stability to Sri Lanka nit pick this particular gazette covering only period from 2015-2019 & propose that the Presidential CoI recommendations should be annulled? This is a very strange proposal from BASL.

1. BASL is proposing that the Cabinet of National Unity” prepare a Common Minimum Program (CMP) consulting the civil society” Advisory Council & have it tabled in Parliament. The CMP is to focus on – debt restructuring, negotiating IMF (BASL has already decided on who Sri Lanka should go to) & obtain bridging finance from bi-lateral partners / shortages of essential goods & services / divesture & privatization of state assets & awarding tenders / uphold Rule of Law / adopt foreign policy that supports national interests / enact legislation on crime, recovery of state assets, law on anti-corruption, regulation of political parties, campaign finance, amendments to Declaration of Assets & Liabilities law / amendments to Monetary Law & new legislation to strengthen independence of Central Bank of Sri Lanka / enact inputs of professional organizations & trade associations / strengthen Consultative Committees of Parliament & Sectoral Oversight Committees & invite professional organizations to attend meetings / complete reforms on conduct of elections

• IMF is mentioned 8 times
• 19^th amendment is mentioned 5 times
• 20^th amendment is mentioned 3 times
• 21^st amendment is mentioned 3 times
• A civil society Advisory Council” is mentioned 3 times
• power, fuel, gas, medicines, food etc is mentioned only TWICE.

What warrants hurrahs for the BASL proposals requires explanation given that it has not provided any solution apart from going to IMF and a string of constitutional changes that are meant to only weaken Parliament and subtly transfer powers to civil society with financial independence. What is shocking is the 9^th proposal to annul the Gazette that created a Presidential Commission of Inquiry into the victimization during 2015-2019 with recommendations by the Commission. Why would BASL take pains to nitpick only this Commission and propose it to be annulled?

This highlights the political bias of the BASL and its proposals

Shenali D Waduge