That Convenient Escape Clause

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Prior to the enactment of the 17th Amendment (17A) to the Constitution in September 2001, sins of commission and omission, committed by the Executive, were passed on to the Cabinet, as, “collective responsibility,” a convenient escape clause.

17A was passed when President Chandrika Bandaranaike Kumaratunga was in power. However, her successor President Mahinda Rajapaksa got 18A passed in Parliament in October 2010, thereby regained the lost Executive Presidential powers caused by 17A.

But, in a game of musical chairs played by successive Governments, vis-à-vis the Executive since 1994, first, from threatening to abolish it, to diluting its powers, the regime change that took place in January 2015 made Parliament once more ‘supreme’, by passing 19A in April 2015.

However, after the present regime came to power in November 2019, this tragicomic round of musical chairs was once more enacted with the passing of 20A in October 2020, thereby reinforcing Executive Presidential powers once more.

While the Executive system of Government in its present form is convenient for the Executive to hide behind the escape clause of ‘collective Cabinet Responsibility’ for the sins of commission and omission committed by him, it’s also an escape clause for lapdogs of the Government too.

This was aptly demonstrated by former Treasury Secretary S.R. Attygalle, Treasury Secretary from 20 November 2019 to 7 April 2022, in his testimony before the Committee on Public Finance (COPF) on Wednesday.

He said, “Decisions regarding tax policies were taken in keeping with the first Cabinet Paper presented by former Premier Mahinda Rajapaksa on 4 December 2019.” He was referring to the reduction in the VAT rate from 15 per cent to 8 per cent among other tax reductions introduced during Attygalle’s tenure of office in 2019 which caused a huge revenue loss to the Government. 

What is questionable about Attygalle’s defence is, then, why not have a Punchi Singho or a Citizen Perera or a similar ‘man on the street’ as Treasury Secretary, rather than a man of Attygalle’s ‘calibre’? That would also generate a huge saving to the Exchequer! This suggestion has to be looked at in the context that as per the former Treasury Secretary’s explanation to COPF, he was merely carrying out his master’s commands, with no questions asked.

At the other extreme, Attygalle’s explanation is similar to a soldier telling Court that he shot and killed innocent civilians or surrendering enemy soldiers because his Commanding Officer ordered him to carry out such an illegal order. In a Court of Law, such an explanation will not hold water. Likewise, laws should also be enacted to prosecute public servants for carrying out illegal orders of their superiors, as well as such superiors as well.

In fact, Central Bank of Sri Lanka Governor Dr. Nandalal Weerasinghe rebutted Attygalle’s defence, when speaking at the same COPF meeting. He said, it’s the responsibility of officials to inform politicians when they err and politicians alone are not responsible for the consequences of these decisions.

This newspaper remembers that during the tenure of Sri Lanka Air Force (SLAF) Commander Air Chief Marshal Dick Perera, President J.R. Jayewardene wanted to visit a certain SLAF Camp. Officers of the Presidential Security Division (PSD) visited this Camp before hand to observe its security arrangements. But, the SLAF Base Commander refused them entry on the basis that the security of the Camp was his exclusive responsibility.

Jayewardene, hearing of this incident phoned Perera and said, he wanted that particular Base Commander sacked. Perera in reply said, he would first send his resignation before sacking that officer. The matter ended there. Perera is one of a kind.

Nonetheless, what Sri Lanka needs is laws to protect public servants for not carrying out illegal orders made by their superiors whoever that superior may be, while, simultaneously, if such a public servant executed an illegal order, he, together with the superior who made that illegal order, should also be subjected to punitive punishment. The proposed 21A which once more seeks to curb the President’s powers by negating 20A should also include such a clause.