Lanka on judicial cliffhanger: A lesson from Pakistan

By Ameen Izzadeen
Sri Lanka’s constitutional coup or crisis, as the case may be, has an eerie similarity to a constitutional coup that took place in Pakistan in 1953 – and the evolution of that country’s judiciary – from servility to supremacy – stresses the importance of judicial activism.
The Pakistan coup, that country’s first in a series of coups, teaches us an important lesson: It tells us that generations to come will suffer if any one of the government’s arms is to make a mistake, when called upon to play their constitutional role, particularly at a time when the nation’s existence as a democratic entity is threatened.
Sixty-five years after that constitutional coup and a judicial ruling favouring it, Pakistan is still struggling to establish itself as a fully-fledged democratic state – with the biggest threat to democracy being the military hanging on to that appalling judicial decision.
If only the Federal Court that was called upon to judge the legalities of the 1953 coup had sided with justice and understood how important democracy was to the nascent state, Pakistan would have been spared of its many military coups that have only contributed negatively to the country’s stability and socio-economic development.
First, the details of the doomful coup which overthrew the government of Prime Minister Khawaja Nazimuddin, a prominent figure in the Pakistan movement: The new nation was struggling to stand on its feet as an independent state. Muhammad Ali Jinnah had died. The country had already faced its first war with India. Its first Prime Minister Liaquat Ali Khan had been assassinated. The country’s stability was being shaken by never-ending protests and demonstrations. Religious tension was high with Sunni groups urging the government to declare that the Qadianis or the Ahmadis as non-Muslims. Adding to the government’s woes were agitations over the Bengali language issue in East Pakistan. Accusing the prime minister of mismanaging the situation, Governor General Ghulam Mohammed dismissed the government in April 1954, although the prime minister had won a confidence vote only a fortnight earlier. Military chief Ayub Khan, who took over the government a few years later as Pakistan’s first military dictator in the country’s first ever military coup, openly backed the Governor General’s decision.
The coup happened at a time when the country was drafting its first constitution. In the absence of a constitution, governance was subjected to the Government of India Act 1935, a British colonial law which served as an interim constitution.
In September 1954, sensing the danger to democracy, the Constituent Assembly curtailed the Governor General’s power to dissolve the government by amending the Government of India Act 1935. The amendment decreed that the Governor General could do so only with the approval of the Cabinet.
An angry Governor General dissolved the Constituent Assembly itself. The head of the Assembly challenged the dissolution of the Assembly in the Federal Court of Pakistan. In a major blow to the foundation of Pakistan’s democracy edifice being built, the bench, except for one dissenting opinion, backed the dissolution. The bench, headed by Chief Justice Mohammed Munir built its judgment on the grounds of the doctrine of necessity — a doctrine that recognises that the well-being of the people is the supreme law. The judgment was also built on the assumption that Pakistan was still a British dominion with the Sovereign being the British Crown and, therefore, not a republic where the supremacy of the Assembly or the sovereignty of the people was upheld. Many analysts say this verdict by a group of conservative judges gave licence for military chiefs to topple democratic governments in Pakistan and interpret their actions in terms of the doctrine of necessity.
In his widely acclaimed book, ‘the Destruction of Pakistan’s democracy’, Allen McGrath notes that Pakistan moved from democracy to military dictatorship, not so much because the military was waiting in the wings to capture power, but because the judiciary gave its stamp of approval for the nation’s chief executive’s immoral and democracy-killing move.
He says when Chief Justice Munir denied the existence of the Assembly’s sovereignty, he destroyed Pakistan’s existing constitutional basis.
Seven decades later, Pakistan has evolved from a nation of judicial servility that justified coups to one of judicial proactivism which upholds the democratic spirit of the nation. So much so that the Supreme Court has, in recent years, unseated not one but two prime ministers, in a zealous display of judicial independence. Supporters of the ousted prime ministers, however, decried the judges’ behaviour as judicial dictatorship.
Whatever the criticism, Pakistan’s judiciary has come of age to check the excesses of the executive and it is the only institution the military is scared of. This is more so after the judiciary’s courageous stand against the excesses of former military strongman Pervez Musharraf.
In 2012, Pakistan’s Chief Justice Iftikhar Chaudhry, who became internationally known for giving moral leadership to a countrywide movement to topple the Musharraf regime, disqualified Prime Minister Yousuf Raza Gilani after he was found guilty of contempt of court for not carrying out a Supreme Court order.
The court had ordered Gilani to write to the Swiss authorities to reopen fraud investigations against Pakistan’s then President Asif Ali Zardari. Gilani was summoned to the Supreme Court and told he had been convicted and, therefore, he was disqualified from being a member of Parliament or prime minister.
In April this year, Pakistan’s Supreme Court stripped the then Prime Minister Nawaz Sharif of his premiership saying a person who had been found guilty of corruption was not fit to hold such a high post. The court ruled that anyone disqualified under a constitutional clause requiring legislators to be “honest and trustworthy” would be considered banned for life. Sharif was hauled before court after the Panama Papers exposé by a team of international investigative journalists showed he had secret offshore accounts.
Judicial activism in Pakistan, in recent years, has made the military to think several times before venturing out to stage a coup and capture power. Musharraf is today a fugitive from law. He is facing several cases in the Supreme and High Courts, including one for treason — for allegedly subverting the constitution.
Judicial activism is part of democracy. At a time when President Maithripala Sirisena has placed Sri Lanka on a cliff, it is only judicial activism that can save the country from doom and save democracy.
The constitution has a body and a spirit. While the body consists of the letters and the wordings, the spirit is found in Article 1 of the Constitution. It says: “Sri Lanka is a Free, Sovereign, Independent and Democratic Socialist Republic and shall be known as the Democratic Socialist Republic of Sri Lanka.” Every adjective in this Article describes what Sri Lanka is and what it should be. Ours is essentially a democracy and a republic where the supreme power resides in people and elected representatives responsible to them and governing according to law. Therefore, any move to undermine democracy is an attempt to subvert the constitution and its spirit. Protecting democracy is, therefore, not only judicial activism, but also the sacred duty of the judiciary and every citizen of this country.
(This article first appeared in the Daily Mirror, Sri Lanka)

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Mr. President, be a statesman even at this late hour!

By Ameen Izzadeen
As Sri Lanka’s constitutional crisis deepens, whatever ways-out political analysts may propose, only a principled solution is desirable and should be called for. This is because the health of the country’s democracy depends on a rule-based order, where the doctrine of Separation of Powers is upheld, especially with regard to the independence of the judiciary.
No longer can we wait to rectify the distortion of democracy. The more we wait, the more damage is caused to democracy. Justice must prevail. A solution short of justice, in the name of a win-win compromise will be an affront to rule-based governance. Not only will the present generation suffer, but also generations to come, if we accept a compromise put forward in terms of the doctrine of necessity to solve the problem at hand while conveniently leaving the core issue – the constitutionality of the President’s executive orders — for another day.
Even if the political crisis drags on for weeks and months, even if the economic growth suffers and the administration grinds to a halt, justice must be the basis to solve the crisis.
In this constitutional crisis, the protagonists need to understand that for the sake of country’s wellbeing and that of the generations to come, what is required of them is a conduct befitting statesmen. The problem with many of Sri Lanka’s executive presidents, President Maithripala Sirisena included, is that they seldom keep the company of right-minded people who can give them advice based on moral values and principles upholding democracy and justice. Rather, their advisors, one of them being a once well-respected law professor, often become self-centred bootlickers and do not give a damn about democracy and rule of law. Instead, they massage the ego of the President, give warped interpretations to constitutional provisions and churn up loads of baloney.
Thus, it is not surprising, when the President, shorn of saner counsel, keeps saying he will not, under any circumstances, appoint Ranil Wickremesinghe as prime minister. One need not be a constitutional expert to discern the unconstitutionality of his statement. After all, the President is not so naïve as not to know that appointing the country’s prime minister cannot be done in the same manner as appointing a maid to housekeep his private residence in Polonnaruwa.
Having allegedly acted arbitrarily, the President probably thinks he may end up with egg on his face if he, recognising that Mahinda Rajapaksa, the prime minister he appointed in a questionable manner, does not command a majority in Parliament, lets Wickremesinghe return to the premiership. But if Sirisena is to be remembered as a statesman, even at this late hour when he thinks he has reached a point of no return, he has to set aside power politics, listen to the growing civil society voice and restore the status-quo-ante.
As a way out of the crisis, especially in view of the damage being caused to the economy, some see a general election as a fair solution. Some suggest that Wickremesinghe should step down and allow another United National Party leader to become prime minister. They call them win-win solutions. Far from it, any solution is a travesty of justice if it does not allow Wickremesinghe to show his parliamentary majority once again and become the prime minster. As for Sirisena’s conceited remark that he will not stay in office as president, if Wickremesinghe becomes prime minister again, all what he needs to do is to declare that he is ready to eat his words or sacrifice his self-respect for the greater cause of upholding democracy and ensuring stability. Such statesmanship is the need of the hour.
Apart from that, the solution that calls for any UNPer other than Wickremesinghe to be the prime minister is also loaded with moves to split the UNP. Whether Wickremesinghe should continue to run the party or he should retire from politics is totally an internal party issue and is not relevant to the legalities of the constitutional quagmire.
Meanwhile, some, in an expression of their frustration, call for a retirement age for politicians. If we had set the retirement age of 65 for elected representatives, we would not have fallen into this crisis, they say.
But there is no correlation between age and good governance. Nelson Mandela was 76, when he became South African’s President in 1994 and became an exemplary leader. In Malaysia, people placed their faith once again in 93-year-old Mahathir Mohamed at the general elections held in May this year and brought him from retirement to govern the country with a franchise to clean up the country’s corruption-ridden political system. India’s much-respected Prime Minister, Manmohan Singh was 72, when he first took office in 2004 and 82 when he left in 2014. The United States President Ronald Reagan was 77 when he ended his second term in 1989. These old leaders are not associated with constitutional coups or backdoor political manoeuvres. Yes, there are old leaders like Zimbabwe’s Robert Mugabe and Cameroon’s Paul Biya who abuse political authority and upend constitutional governance to remain in power until their people get sick and tired of them.
Also young leaders are not necessarily good leaders. Hitler was in his forties when he triggered World War II and unleashed the Holocaust in which millions of Jews perished. Look at Saudi Arabia, where a young crown prince in his mid-thirties is making headlines for the wrong reasons, including the killing of journalist Jamal Khashoggi. On the other hand, Canada’s 46-year-old Justin Trudeau is a shining example of a young leader committed to good governance.
Old or young, age does not matter for leadership ability and commitment to uphold democracy, good governance and justice. Even if a country’s constitution is denounced as lacking in democratic features and promoting dictatorship, its head of state or government could still emerge as a good leader, if he is committed to uphold democracy and good governance. On the other hand, however good the country’s constitution is, a head of state or government can still be bad, if he acts arbitrarily. Such a leader would not hesitate to disregard a court ruling, even if it comes from the Supreme Court. In February this year in neighbouring Maldives, when the then President Abdulla Yameen did not like the Supreme Court’s ruling ordering the release of political prisoners, he declared a state of emergency, got Supreme Court justices arrested and appointed new justices. Whither Sri Lanka?
(This article first appeared in the Daily Mirror, Sri Lanka)

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Checks and balances: Lanka’s Magna Carta moment

By Ameen Izzadeen
On a positive note, the current political crisis in Sri Lanka can be the country’s Magna Carta moment to chart a course to the pinnacle of democracy.
The developments since President Maithripala Sirisena on October 26 sacked Prime Minister Ranil Wickremesinghe have placed Sri Lanka on a constitutional cliff. But, if the power- greedy politicians do not drag the country into an autocratic abyss, the crisis could be a blessing in disguise to lead the country towards a democratic haven where the doctrine of separation of powers will be held supreme to remind politicians that the people’s mandate has to be exercised with responsibility. The power exercised by elected representatives is not their ancestral property to be abused at will but is a trust subjected to checks and balances and needs to be held sacred.
Those who abuse or betray the people’s mandate are no better than monarchs who, only a few centuries ago, taking cover behind what they called a divine right to rule, oppressed the people and amassed wealth by exploiting them. In this age of post-post enlightenment, politics is not for those who do not care a damn about democracy in their quest to establish autocracy though they make use of democratic instruments such as franchise and elections.
While most Sri Lankans are shocked by the shenanigans being unravelled in the political front, the happenings in the United States, however horrendous Donald Trump’s hubris-driven governance is, make that country a shining example in constitutional democracy. The Democratic Party’s victory at this month’s mid-term elections to the House of Representatives has been hailed as a people’s mandate to strengthen the checks and balances to control a maverick president before he could do more harm to the United States and the rest of the world.
With the Democrats now controlling the House and chairing the Oversight Committee, the Trump administration has now been well and truly checked. The Democratic Party-controlled House can now summon witnesses, especially with regard to the Robert Mueller investigations into allegations that Trump campaign officials had any links to Russia’s interference in the 2016 US election. For the past two years, Trump had survived scrutiny because both the Senate and the House of Representatives were under Republican control. But from January, Trump will not find it easy to beat around the bush.
To check the unbridled power of the executive president, especially when his party controls both houses of Congress, the mid-term elections, as provided for in the US Constitution, restore the balance of power by empowering the legislature to check the president, in keeping with the doctrine of separation of powers.
In another recent incident that proved how checks and balances worked in the US through the judiciary, a federal judge ruled that CNN reporter Jim Acosta’s “First Amendment rights overruled the White House’s right to have orderly news conferences.” The ruling followed CNN journalist’s petition challenging Trump’s executive order to withdraw his media credentials to cover White House events.
This week, there was another blow to Trump from the judiciary. A federal judge on Tuesday temporarily prevented the Trump administration from denying asylum to migrants who crossed the border illegally. The court in its interim order ruled that the president violated a “clear command” from Congress to allow the migrants to apply for asylum. In another move that underlines the doctrine of separation of powers, this week, Congress members, including Senators from the President’s Republican Party, challenged Trump’s statement defending Saudi Arabia over the killing of journalist Jamal Khashoggi. They sent a letter to the White House on Tuesday, urging Trump to officially trigger an investigation into whether Sauid Arabia’s crown prince ordered the assassination.
Sri Lankan politicians and their blind supporters would do well to look at how the US system works and how it upholds the balance vis-à-vis the separation of powers principles as expounded by French political philosopher Montasqueiu. In his great work, “Spirit of the Laws,” which inspired the the Rights of Man declaration, the French revolution’s gift to mankind, Montesqueiu said that in any form of democratic governance, the inclusion of the separation of powers is a sine qua non.
The Constitution of the United States was made based on the Montasqueiu’s model. Under this model, the political authority of the state is divided into legislative, executive and judicial powers. Montesqueiu asserted that, to most effectively promote liberty, these three powers must be separate and must act independently so that one arm of government can check the excesses of another. Separation of powers also refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power in one arm of government and provide for checks and balances.
It goes without saying that Sri Lanka’s 1978 Republican Constitution does not contain proper checks and balances. The framers of the 1978 Constitution justified the overconcentration of powers in the executive presidency on the grounds that it would ensure political stability which in turn would ensure rapid economic growth. However, without effective checks and balances in the Constitution, we saw how the powers vested in the executive presidency turned even politicians with democratic credentials into unchecked autocrats or even out and out dictators. Some even acted like virtual monarchs. Sri Lanka became a political lab for students researching on the validity of Lord Acton’s famous statement that power corrupts and absolute power corrupts absolutely.
In advanced democracies like the United States, a study of amendments shows they have been made to strengthen democracy and shut loopholes for the abuse of power. But in Sri Lanka, the history of constitutional amendments shows they have been made largely to make the president and the ruling party more powerful.
Of the 19 amendments made to the 1978 Constitution so far, eight could be identified as being politically motivated ones. They included the Second Amendment also known as the infamous Rajadurai Amendment and the preposterous 18th Amendment which can easily be labelled as the Rajapaksa era democracy killer, for it repealed the democracy-enhancing 17th Amendment.
It was depressing to note the manner in which the so-called Joint Opposition MPs expressed their opposition to many of the 19th Amendment’s pro-democracy clauses when it was being debated in Parliament in 2015. Instead of strengthening it, they extended their support for the amendement on condition that some clauses — for instance, as this column pointed out recently, the anti-defection provision — were withdrawn.
Yet, today at a time when constitutional governance has been undermined by what is being described as unlawful usurpation of state power by a cabal backed by the executive president, democracy activists heave a sigh of relief that at least some checks and balances introduced through the 19th Amendement have survived, especially the provisions to set up the Constitutional Council and the independent commissions on police, public service, the judiciary and elections. This became evident in the Independent Police Commisison’s decision to cancel the Police Chief’s directive this week to transfer an inspector probing several high profile cases linked to the Rajapaksa regime.
Yes, checks and balances involving the executive, the legislature and the judiciary — this country needs more of them to prevent abuse of power and protect democracy. The county is on a cliff. It can fall into a dark abyss or saved by the nobel intentions of those who recognise checks and balances.
(This article first appeared in the Daily Mirror, Sri Lanka)

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MPs’ defections a betrayal of the voters

By Ameen Izzadeen
An elderly gentleman, a United National Party supporter, cast his preference vote for a teledrama actress who contested the 2010 parliamentary elections from the UNP, for he felt she was being unfairly vilified by the then government leaders who suddenly projected her character as a ‘a bad woman’ after she played the lead role as a do-gooder for more than a hundred episodes. She was, however, elected to parliament, largely on the sympathy of voters, including many elderly people who exercise their franchise not in anticipation of any benefits for them but in the hope that the future generation will have a better Sri Lanka. But she betrayed her voters, when she crossed the floor and joined the Mahinda Rajapaksa government after remaining some months in the opposition as a UNP parliamentarian.
As Sri Lanka finds itself in a constitutional quagmire following the controversial swearing-in of a new prime minister by the President while the sitting prime minister insists he is the rightful holder of the post, the absence of an anti-defection law is seen to be the major curse that undermines democracy and the people’s mandate.
As the numbers game for the decisive 113 target becomes dirtier by the hour, nothing makes such a huge mockery of democracy and the voters the biggest losers than the floor crossing, frog jumping or monkey acts of members of Sri Lanka’s 225-seat parliament.
As MPs switch sides amid allegations that they are being bought over for hundreds of millions of rupees, the voters feel betrayed. In an audio clip posted on social media, a young smart voter was heard demanding from his MP who switched sides and was sworn in as a deputy minister that he be paid Rs. 2,900 – the amount was worked out by dividing the money the politico is alleged to have received by the number of preferential votes he polled.
There’s no gainsaying that Sri Lanka’s democracy is party-based. At the start of an election campaign, a political party presents before the voters its manifesto, outlining its policies and the programmes it intends to implement if elected to office. In the absence of a mechanism to hold the parties accountable to a judicial authority for the pledges they make in their election manifestoes, the parties do promise the sun and the moon. Whether they fulfill their promises is another matter. But the issue here is that the people do vote for a party rather than for an individual, for, at a parliamentary election, the main purpose is to elect a new ruling party or reelect the party in office. Our voting system is also structured accordingly. First we cast our vote for the party and then cast our preferences for the candidate of our choice.
Under the circumstances, if MPs elected from one party switch their allegiance to another party, it is sheer betrayal, unless, of course, they are required to do so by a petition by their electorates with the number of signatures being, at least, equal to the preferential votes they received at the election.
In Britain, though floor crossing is permitted, the present trend is MPs, instead of crossing the floor, resign their seats, publicly announce they have joined another party and stand for by-elections. Often, the MP who crosses over loses the seat.
In the United States, elected representatives can take an independent stance on any issue, although they come under the party whip. In the US, both major parties encourage their opponents to jump to their sides, but, in such instances, research shows that the voters were furious and records show that the ‘frog’ had often lost the reelection bid. Research carried out on floor crossing in developed democracies underscores that what matters more to the electorate is not the candidate but the party and its policies. If a candidate becomes bigger than the party, it’s populism or cultism that distorts democracy.
In Australia, voters take to the streets shouting slogans such as “Give back our seat” when an elected member switches sides. An MP holding on to the seat and supporting a party which was not the choice of the people who elected the MP is seen in developed democracies as indulging in an act of fraud committed upon the voters.
When money or other inducements such as cabinet posts are involved, then the fraud amounts to a murder of democracy. The seat strictly belongs to the party or to the voters. It is in this context that the need for anti-defection laws assumes significance.
Sri Lanka’s democracy will remain defective until and unless the country strengthens its anti-defection laws or brings in constitutional amendments, making party jumping illegal. We need to ensure that the sanctity of the august assembly is not tainted by bribery and corruption and the earlier this is done the better it is for the survival of our democracy. Otherwise, what we call Sri Lankan democracy will only be a charade.
India, the world’s largest democracy, passed its anti-defection law as a constitutional amendment in 1985 with the intention of ending bribery and corruption at the highest level and the ugly practice of inducing defection with the reward of ministerial positions and perks. According to the Indian law, members of parliament or state legislatures are deemed to have defected if they either voluntarily resign from their parties or disobeyed the directives of the party leadership on a vote. Even independent members are disqualified if they join a political party because the spirit of the law, as interpreted by a five-bench Supreme Court ruling in 1992, is to respect the electors’ preference of the party. During the hearing, the right of an MP to defect was defended in terms of the constitutionally guaranteed right of free speech, but the court held that the anti-defection law did not violate any rights, freedoms, or the basic structure of parliamentary democracy.
Sri Lanka has an anti-defection clause in the constitution. According to Article 99(13), where a Member of Parliament ceases, by resignation, expulsion or otherwise, to be a member of a recognised political party or independent group on whose nomination paper his name appeared at the time of his becoming such Member of Parliament, his seat shall become vacant upon the expiration of a period of one month from the date of his ceasing to be such member.
However, the vacation of the seat is subject to the provision that allows the Supreme Court to interpret the validity of a party’s decision to expel an MP. Different Supreme Court benches – in the Athulathmudali, Ameer Ali, Amunugama and Piyasena cases, for instance — have interpreted the exception provision differently and their rulings have only increased the call to amend the law to plug the loopholes.
However, in 2015 the move to strengthen the constitutional provision on anti-defection came a cropper when the Mahinda Rajapaksa-led opposition made the withdrawal of it as a condition to extend its support for the 19th Amendment. Prime Minister Ranil Wickremesinghe, one of the prime movers of the 19th amendment, had to give in to get the bulk of the 19th amendment passed. But he must be ruing this mistake or the missed opportunity, having known that ‘Joint Opposition’ leaders are past masters in fishing out rival party MPs with inducements of ministerial perks and allegedly money. We could have been spared of this moment of turmoil in our quest to establish democracy in our country, if we had included anti-defection provisions in the 19th Amendment.
(This article first appeared in the Daily Mirror, Sri Lanka)

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Geopolitical implications of Lanka’s political crisis

By Ameen Izzadeen
Sri Lanka’s democratic process, which suffered a devastating blow last Friday, is likely to be on the reverse gear in the coming months and years. The pre-2015 regime seems to be moving hell and earth to re-establish itself in power, while the big powers have their eyes fixed on the developments in Sri Lanka.
The constitutional crisis that erupted on Friday night following what is widely seen as President Maithripala Sirisena’s controversial and morally unacceptable move to remove the sitting prime minister, Ranil Wickremesinghe, has its geopolitical implications, too.
Although at the centre of this geopolitical aspect of the Sri Lankan crisis are China, India and the United States, the spotlight is largely on China, the only country which permitted its ambassador to meet Mahinda Rajapaksa upon his swearing-in as the prime minister on Friday by President Sirisena. Addressing a protest rally on Tuesday in Colombo, a United National Party lawmaker alleged that Chinese money was propping up the anti-democratic forces and helping them to return to power through the backdoor. A few months ago, a New York Times article claimed that China had lavishly funded Rajapaksa’s 2015 botched re-election campaign for the presidency.
China has much at stake in Sri Lanka, with Hambantota being the jewel in the crown of the soon-to-become world empire, which is not so naïve as to ignore the saying that whoever controls Hambantota, will control the Indian Ocean all the way to Antarctica. Given the propensity for a military confrontation between the United States and China against the backdrop of US apprehensions about China’s military rise, the trade war between them, the growing tensions in the South China Sea and the security concerns of India, Japan and even Australia, the importance of the Hambantota port has shot up manifold.
When the government changed in January 2015, China had already built part of the Hambantota port for Sri Lanka and an airport in Mattala. The two projects were commercial flops and had negative returns, adding further strain on the country’s growing debt burden. Meanwhile, Chinese companies had penetrated Sri Lanka’s power, road and building construction sectors and started landfilling for the US$ 1.4 billion Colombo port city where the Chinese developers had been given a 20-hectare plot of Sri Lanka’s sovereign territory as freehold, with nary a protest from the so-called nationalists or blind patriots.
The port city was a major security concern for India, as the new city developed by the Chinese was adjoining the Colombo harbour, through which 70 percent of India’s shipping cargo passed. Heightening the security concerns of India, the US and Japan were the ‘secret’ visits of Chinese military submarines to the Colombo port. One such visit took place when Japan’s Prime Minister was on an official visit to Sri Lanka.
The Rajapaksa regime put all its eggs in China’s basket and earned the displeasure of India, Sri Lanka’s closest neighbour, whose cooperation was sine qua non in the quest for a solution to the national question. Yet, India stomached the Rajapaksa government’s China-leaning because it felt an all-out hostility would be a worse option. This appears to be India’s policy on the current constitutional imbroglio in Sri Lanka.
The post-2015 Wickremesinghe-Sirisena government took some corrective measures and renegotiated the port city deal. The freehold offer was annulled, but the government, in a desperate bid to tide over the deepening debt crisis, handed over 85 percent of the Hambantota port to China under a joint-venture deal.
Yet, Wickremesinghe performed his balancing act well vis-à-vis India, China, the US and Japan while the Indian Ocean region was fast becoming a flashpoint for a big power conflict, what with the US and India naming the Indian Ocean region Indo-Pacific and entering into pacts that have made them military allies.
India, Japan, the US and Australia have, meanwhile, intensified military cooperation and are reviving a quadrilateral defence arrangement to counter China’s military rise and its assertive diplomacy, especially in the South China and Indian Ocean regions. It is against this backdrop that Sri Lanka has plunged into a political crisis with serious international implications. It may not be an unintelligent guess if one were to assume that China precipitated the ‘constitutional coup’ in a bid to block Wickremesinghe’s proposal to hand over to India the development of the Colombo Port’s Eastern Container Terminal. China was not so pleased when the Wickremesinghe government ditched Chinese companies and handed over to India a mega project to build tens of thousands of houses for the war-affected people in the North.
The question that arises is whether the projects earmarked for India, including the ones in the north, the Colombo Port’s Eastern Container Terminal project and the project strategic oil tanks in Trincomalee, will now go to China, if the Rajapaksas ensconced themselves in power.
With the bigger focus being the upcoming presidential and parliamentary elections, China may, in a quid-pro-quo deal, waive part of the debt or offer concessions on debt repayment, in the event, Rajapaksa emerges victorious in a floor test in parliament in the days to come. This will enable the Sirisena-Rajapaksa government to take measures to ease the living cost burden of the people and further entrench themselves in the seat of power, notwithstanding the fact that a substantial segment of Sri Lankan society, especially the educated and politically mature people, have condemned their action as undemocratic, unconstitutional and immoral.
Since there is no free lunch in politics, China’s largesse will come with a must-do list. The Hambantota port may be used by China’s military vessels on one pretext or another. China may place a request and obtain a tiny island near the Hambantota port on lease. The request had been turned down by the Wickremesinghe government.
Hambantota is a key pivot in China’s Belt-and-Road initiative, which can certainly contribute to world peace through enhanced and inter-dependent trade. But at the same time the possibility of BRI ports becoming military facilities of China cannot be ruled out, with China’s yuan diplomacy pushing many developing countries into a debt trap and compelling them to do China’s bidding.
In this big power game, the leverage India and the US have is limited. They had lost the Maldives and just regained it with the defeat of pro-China President Abdulla Yameen. Even if India and the West add pressure on Sri Lanka through the United Nations Human Rights Council process, the Sirisena-Rajapaksa government can overcome the crisis with China’s backing. They may warn that Sri Lanka may lose the GSP Plus concessions on account of the country’s poor human rights record and weak democratic credentials. The Rajapaksas have faced this before. But the West and India will not sit idle if, under a Rajapaksa dispensation, the country becomes one with China. Sri Lanka may become a key theatre in the coming world war.
With undemocratic forces gaining upper hand in Sri Lanka’s political crisis, the bigger danger is the country adopting a Chinese-style virtual one-party political system.
(This article first appeared in the Daily Mirror, Sri Lanka)

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May God save Islam from anti-democracy rulers!

In the Middle East, democracy should be what an oasis is to a desert. But the irony is while Saudi Arabia’s crown prince, who is turning out to be the chief suspect in the killing of journalist Jamal Khashoggi, holds the ‘Davos in the Desert’ economy summit with the aim of making his country the region’s next investment hub after Dubai, his country is digressing into a Jahiliyya kingdom.
In Islamic literature, the word ‘Jahiliyya’ refers to the ‘ignorant’ period that existed before Islam liberated the people and set them on a path to become the bright stars in the firmament of knowledge. During the Jahiliyya period, slavery and superstition were rampant; women were treated like chattel with no civic rights; and female infants were buried alive, for they were considered a humiliation. Debauchery was widespread. Violence and revenge killings were part of life and it is said inter-tribal violence continued for decades over trivial matters such as the straying of one’s camel into a rival’s territory.
Since slavery had been part of jahiliyya, if a state treats its people like slaves, denies them the freedom of speech, movement and assembly, the freedom to choose their rulers and oppresses women’s political and civil rights, it only promotes Jahiliyya. Sadly, Saudi Arabia, the birth place of Islam, fits the description. Saudi Arabia’s claim that it is governed by Islamic Shariah, it appears, is only a charade. Islam condemns lies and deception. But since Khashoggi was mercilessly murdered in Saudi Arabia’s Istanbul consulate on October 2, the Saudis have changed their narrations umpteen times before they admitted that he was killed during interrogation that went wrong. Yet, they have not provided answers as to what they did to Khashoggi’s body.
On Wednesday, three weeks after Khashoggi was tortured, killed and dismembered, the Saudi media showed footage of Crown Prince Muhammad bin Salman, the man accused of ordering the killing, shaking hands with Khashoggi’s son, Salah, a dual Saudi-US citizen.
Behind this cold-hearted show of indifference is the bitter truth that Khashoggi’s family members in the kingdom are virtual prisoners. They are prevented from speaking out or leaving the country.
Yesterday, the crown prince told the Riyadh investment forum that “those responsible will be held accountable… in the end justice will prevail.”
Can a government said to be run by Shariah law resort to intimidation, acts of cruelty and taking a life without a fair trial? If this is what Islam is, then God save Islam from Saudi rulers!
On January 9, 2013, Rizana Nafeek, a 24-year-old Sri Lankan woman, was beheaded in Saudi Arabia, for causing the death of an infant in her care while she was only a 17-year-old maid in a Saudi household. Plea after plea for mercy was rejected with the infant’s mother insisting that Rizana be put to death. She was beheaded. Eye for an eye and a life for a life: We were told this was Saudi law. On March 25, 1975, King Faisal was shot dead by his nephew. The prince was found guilty and beheaded publicly: We were told this was Saudi law which applied equally to all citizens. But it is unlikely whether anyone will be found guilty and beheaded in the Khashoggi killing, though evidence is strong that Khashoggi was killed by a killer squad sent by a very powerful person.
It is no surprise that most Arab and Islamic leaders have chosen not to speak up for justice. Most of them are themselves autocrats — and, by throwing their weight behind the Saudi rulers in the Khashoggi affair, they seem to endorse oppression, lies and deception so that they can continue to receive the millions of dollars the kingdom throws at them regularly. Some of them were present at this week’s Riyadh investment summit.
If democracy is considered the worst form of government, except for all the others, then monarchical rule is the worst of the worst and an insult to the collective dignity of the world’s 7.6 billion people in an era where attempts to erode not only the freedom of human beings but also animals are squarely condemned. But yet, rather than being criticised and ostracized for human rights violations, Middle Eastern monarchs and autocrats are hailed as great leaders and given red-carpet reception in blatant acts of political hypocrisy. The West’s inaction or ineffective action indicated that for Western countries, Saudi contracts are more important than human rights and democracy promotion. Are we living in an era of sham liberation and enlightenment?
The bitter reality is the West thrives in Middle Eastern autocracy. Will the leaders of the United States, or for that matter any of the Western nation preaching democracy to the rest of the world, adopt a principled policy that they will not meet or share platforms with undemocratic rulers, until the Khashoggi killing is thoroughly investigated and those responsible are punished?
In 2003, the then US President George W. Bush claimed he sent troops to Iraq to end Saddam Hussein’s brutal dictatorship and bring democracy to that nation. The question that remains unanswered is: Why did not he send troops to Saudi Arabia, Egypt and other Arab countries ruled by dictators? The US intervention in Iraq, Libya and Syria has more to do with oil and geopolitics than any democracy promotion.
What went wrong with the 2011 Arab Spring? It is alleged that the US supported the counter revolution in Egypt to overthrow the democratically elected post-Arab-Spring government and bring back an autocrat in Abdel Fateh al-Sisi. Donald Trump will not even ask the Saudi royals to respect Saudi citizens’ expectations for democracy and freedom, though he describes the Saudi action as the worst cover-up in history and implicated the crown prince in the Khashoggi killing, saying “Well, the prince is running things over there… so if anybody were going to be, it would be him.”
Khashoggi fought for democracy. He believed Islam and democracy were compatible. His mission was to bring democracy to freedom-starved people of the Middle East, especially Saudi Arabia, where jails are filled with people who expressed their desire to have more freedom, and a say in the way the government is run. The Khashoggi affair won’t be the Magna Carta moment or the ‘no-tax-without-representation’ moment for the Saudis.
We won’t be surprised if an earthshattering political event is staged – for instance, a surprise US military attack on some nation or like Wednesday’s parcel bombs – to cause the disappearance of the Khashoggi killing from the political and media discourse.
(This article first appeared in the Daily Mirror, Sri Lanka)

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Khashoggi killing: We can’t worship God and money

The United States and Britain killed tens of thousands of innocent civilians in Iraq and faced no punishment. China has sent one million of its Uyghur population to forced ‘brainwashing’ camps and dismisses with contempt worldwide criticism. Saudi Arabia massacres children and starves millions of famine-stricken people in Yemen and yet stands tall in world fora. In this horror of rich and arrogant nation’s crimes, the killing of one journalist may look like no major matter.
The October 2 gruesome killing of Saudi journalist Jamal Khashoggi at Saudi Arabia’s Istanbul consulate underscores the despicable reality behind rules in world politics: The rich and powerful can commit war crimes, kill thousands of people and still strut around as civilised nations commanding respect. International law, rules, United Nations resolutions and sanctions are largely for third world countries like Sri Lanka, Rwanda and Iran.
If only Iran, a country that is being mercilessly punished for cooperating with the international community with regard to its nuclear programme, had killed a journalist in the same gruesome way the Saudis had allegedly killed Khashoggi, needless to say, the US and its allies, especially Saudi Arabia, would not have rested until Iran was adequately punished until they sated their vengeance.
But mark our words; Saudi Arabia will wriggle out of the crisis, as it has done in the past whenever it had been pushed into a corner. The monarchy loathes democracy and is no respecter of human rights. Even an innocuous tweet can land a Saudi national in jail. Yet every western nation courts its friendship, with an eye on the kingdom’s US$ 750 billion reserves.
Since Khashoggi disappeared on Oct 2, no Saudi citizen has opened her or his mouth to condemn the killing though the Saudi journalist was speaking up on their behalf to bring about an element of democracy into the one-family-led feudal form of governance. The Saudis simply say they believe that Khashoggi is still alive somewhere although in their hearts-of-hearts they know the ‘messenger’ was tortured and killed. They also fear the fate that befell Khashoggi, who was once a close advisor to the royal family, could befall them if they utter a word that does not go with the official statement.
A critic of Saudi Arabia’s war on Yemen and Crown Prince Muhammad bin Salman’s reform process, Khashoggi was named the 2018 Muslim Democrat of the Year by the US-based Centre for Islamic Studies and Democracy. In his acceptance speech in April, he said Saudi Arabia’s rejection of democracy stemmed from a deep belief that absolute monarchy was the best way of governance.
Khashoggi said democracy in the region was under attack from salafists, extremists, and terror groups like ISIS and Al-Qaeda and stressed that the only way out in the Middle East was choosing the path of democracy and getting over sectarianism. He said the lack of interest in the current US administration to defend democracy in the region would make it harder for activists to continue their mission in demanding a just and a democratic system.
Khashoggi said the Gulf nations would keep opposing any democratic movements as the rulers believed that they were “hired by God” to save these countries.
These views also appeared in his regular column in the Washington Post.
Although, drunk with power derived from its oil wealth, Saudi Arabia does care about its world image. But instead of correcting its ways, it often resorts to hubris, threats and oppression.
In 2006, Saudi Arabia gave the Tony Blair government just ten days to stop a corruption probe launched by Britain’s Serious Fraud Office. The probe began after evidence emerged that British Aerospace had paid 6 billion pounds to Saudi Royal family members as commissions, to secure a multibillion pound arms deal. Fearingthe cancellation of the contract described as “the biggest [UK] sale ever of anything to anyone”, Blair invoked national interest provisions and stopped the probe.
That was not the only occasion that Saudi Arabia had flexed his money muscle and political clout. In November last year, Saudi Arabia abducted the prime minister of another country. Lebanese Prime Minister Saad Hariri was summoned to Riyadh and kept incommunicado in an undisclosed location until France intervened and secured his release.
In 2016, Saudi Arabia warned the UN that Saudi aid to UN programmes would be stopped if it did not remove Saudi Arabia from a list of nations that had committed war crimes against children. Saudi Arabia has come under severe criticism in human rights circles for its war on Yemen, the poorest Arab nation, where children are caught up in a war that had, in addition to horror and destruction, brought about a famine described as the worst in one hundred years.
Saudi Arabia’s latest warning is aimed at US President Donald Trump, who is coming under Congressional pressure to take tough action against Saudi Arabia over the murder of Khashoggi. In a puerile bid to show that he was committed to value-based international relations, Trump initially said if the allegations were true, Saudi Arabia would be punished. When Saudi Arabia warned whatever measures the US would take would be met by more severe measures – meaning Saudis by curtailing oil production can let world oil prices shoot up to as much as US$ 400 a barrel – the US President yielded to pressure. He seemed to endorse now the Saudi Arabia’s narration that Khashoggi could have been killed by rogue killers during the interrogation that went wrong. He dispatched Secretary of State Mike Pompeo to Riyadh for talks with King Salman and Crown Prince Muhammad, may be to work out a way out of the crisis, and to ensure that the Saudi contracts, especially the arms deals, are safe. When urged to stop arms sales to Saudi Arabia, Trump rejected the call, saying the Saudis would then go to Russia or China.
In a strange coincidence, the day Khashoggi walked into the consulate and into the trap set up by his killers, President Trump in an insulting tone told a campaign rally in Mississippi that Saudi Arabia and its King would not last “two weeks” in power without American military support and urged the kingdom to pay more for its own defence.
Trump meant business and wanted Saudi money, more of it. Trump’s first visit overseas as US president was to Saudi Arabia where he signed US$ 400 billion worth of deals, of which arms purchases accounted for US$ 110 billion. In all probability, the rich nations which salivate over Saudi billions will make sure that Saudi Arabia is left off the hook, may be with mild censure, though this does not augur well for a rule-based international order.
Though the Saudi king carries the title of the servant of Islam’s holiest places to give some legitimacy to the royal family’s claims for the divine right to rule, the rulers have long deviated from the Islamic principles of peace, justice, human rights and good governance. Can they justify the killing of children in Yemen as Islamic? Saudi clerics who are quick to condemn other forms of Islam as bid’a or latter day innovations, conveniently forget that monarchical rule does not conform to the Prophet Muhammad’s teachings and the practice of his immediate successors, who upheld meritocracy and the spirit of democracy.
(This article first appeared in the Daily Mirror, Sri Lanka)

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