Between Prescriptions & Post Mortems

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For a Government hopefully awaiting an early positive missive over the recently-negotiated demand for critical funding from the IMF, the pending Supreme Court case over the continuing economic crisis should come as a bigger surprise – if not a stumbling block. True, the IMF and also western nations that are seemingly waiting for the former’s verdict for them to open their purse-strings, the Court case may not mean much, yes. Yet, they all may be keen to know what the Government has to say, especially in terms of its ongoing efforts to address the crisis – and how the nation’s Judiciary intends going about future economic management. 

A three-Judge Bench of the Court is seized of multiple petitions on the economic crisis. They include those from the Bar Association of Sri Lanka (BASL). Some of the petitions want the politico-administrative responsibility fixed, and have a long list of respondents, including Prime Minister Ranil Wickremesinghe and predecessor Mahinda Rajapaksa. Others want the Government’s road-map on fuel receipts and distribution.

As a part of the processes, the Bench has since directed the Attorney-General to revert with a scheme on fuel procurement and distribution after consultations with stake-holders. While seeking judicial intervention under the Constitution to hold the politico-bureaucratic class accountable their omissions and commissions, for the Court to slip into the treacherous trade of oil and fuel can prove counter-productive, in more ways than one.  It is a tight-rope walk.

Half-step-and-jump

It is one thing for the Supreme Court to allow its platform for concerned citizens to get facts and figures out of a Government that seems to be playing a half-step-and-jump game. It is another for the Hon’ble Justices to take upon the role of economic administrators, where even the so-called experts have failed themselves and the nation.

Either way, it will be interesting and informative to see how the Bench proceeds with the ‘accountability’ petitions. Of course, the cases have a long way to go, and the Court may decide either way, in between. Should however the Judges decide to fix responsibility and accountability for the failures of the nation’s economic administrators, past and present, first where should they stop in going back? Two and more important, how would and should proceed against those found guilty.

The Constitution and Government’s rules of business have named institutions and processes that should be acting in such situations. The picture is relatively clear in the case of erring officials. However, against politicos that are found to have failed the nation, can the Court initiate penal action of some kind? If ‘corruption’, involving a certain consideration, in cash or kind, cannot be proved, what other tools are available to the Court take?

In practical terms, it would have to be for the people in future elections, whenever due under the constitutional scheme, to do so. That is if they vote out those the Court had held ‘accountable’. What if the voters still returned those found ‘guilty’ by the judiciary, back to power – whatever the reasons and circumstances? Would it then tantamount to popular verdict exonerating those found guilty by the nation’s highest Court?

Such episodes have occurred in this country and many other democracies, the chief example being the immediate Indian neighbour. Yet, in the final analysis, the Rule of Law has prevailed. Whom the Courts had found guilty were forced to quit political office, and were also sentenced to long prison terms and huge fines. But they were mostly corruption cases, not relating to acts of commissions and omissions, failure to discharge duties and responsibilities.

Cart before the Horse

In all these, did the BASL, for instance, put the cart before the horse, and expected the combo to run? At the commencement of the nation’s twin crises, both man-made, the BASL was busy giving political prescriptions directly to President Gotabaya and whoever was available to hear them out. The BASL was not alone. Every professional organisation had a set of ideas for the rulers. They all fell on deaf ears.

All such recommendations had one thing in common. That President Gotabaya Rajapaksa should quit and facilitate a replacement in his place, now or later. If not others, the BASL knew the constitutional provisions for replacing the President better. Yet, they too spoke on those lines – and to no avail.

Instead, the BASL and others could have – and should have – moved the Supreme Court, seeking the information that they are now demanding. Maybe, it would have helped rein in the public anger of the time. They could have even asked the Judiciary to fix constitutional responsibility for the failures of the Government. A honest judicial appraisal could have taken the nation back by decades and generations, starting with the dead.

That could include JRJ for his mindless economic reforms that killed the nation’s agriculture sector long before President Rajapaksa’s time with his ‘organic fertiliser experiment’. And also S.W.R.D Bandaranaike, for his rivalling socialist model, which did not stop with the birth of the JVP insurgencies, involving the extremist left of which his was a milder and more moderate form, for his times.

Huge hair-cuts

The need of the hour is not a post-mortem examination of the kind, but prescriptions that can work on the ground, here and now. Even the prescription time is past. Now it is time for action, pure and simple.

Accountability, whether of the judicial or electoral kind can wait – and has to wait. Professional bodies, including the BASL, should come together and come up with practical suggestions on overcoming the economic crises for the incumbent Government and existing Parliament to consider and act upon.

Whether it is the IMF conditionalities or the nation’s own conscience that dictates it all, the society has to take huge hair-cuts in the form of losing fiscal concessions that they had come to enjoy through the past decades and believed that it was their right at birth. Professional bodies like those of lawyers, doctors and teachers, with vast grassroots-level networks could take up such education programmes alongside.

But then the Government has to take the lead, in befriending the people, briefing them – but it’s shying away still. Or, so it seems!

(The writer is a policy analyst & commentator, based in Chennai, India. Email: [email protected])

By N. Sathiya Moorthy