Sri Lanka: The Rulers’ Law and the Rule of Law

( November 7, 2016, Colombo, Sri Lanka Guardian) President Maithripala Sirisena and the present government took office on a mandate to establish good governance and uphold the rule of law. Voters, who had for long witnessed the undermining of public institutions and the entrenching of corruption and impunity, now expected the rejection of past practices and the adoption of different standards, says the Friday Forum in a statement.

For almost two years, people have watched patiently, as guarantees of good governance have been undermined or violated. We recognize the many challenges created by years of maladministration, and that some important interventions have been made to strengthen democracy. There is nevertheless a growing awareness that poor governance is becoming entrenched through both governmental action and inaction. The Friday Forum wishes to highlight the following areas of concern:

1. Equality before the Law in Pending Investigations and Prosecutions

The Constitution (which is likely to be strengthened) sets out a fundamental right to equality, stating that “all persons are equal before the law” (Article 12). It is a matter of grave concern that the President and some Parliamentarians suggest that different laws apply to persons in high office and /or members of Parliament. We refer in particular to the President’s recent statement faulting independent commissions and law enforcement agencies for their investigations and prosecutions.

The President’s impatience with the delays in investigations and the need to treat all accused persons with respect and courtesy can be applauded. What is of concern is that he, in his public statement, has castigated officials responsible for the very act of investigating identified high officials, and bringing them before tribunals, without informing him. Independent Commissions and bodies, including those established under the 19th Amendment to the Constitution, may have been appointed by the President. However the President cannot control, advise or instruct them. The public expect these bodies to fulfill their responsibility to act independently of all political authorities. Seeking the President’s approval is contrary to their responsibilities under the Constitution, and to the people.

The President must give a clear message on respect for the right to equality before the law. He must not give legitimacy to the idea that there is one set of laws for the people, and another set for officials, Parliamentarians and powerful individuals for whatever reason.

2. Sale of MP’s Duty-free vehicles

The ugly practice of Parliamentarians selling duty-free vehicles, enabling them to make profits in millions of rupees, must be stopped immediately. The profits they make, in place of the taxes they have been exempted from paying, rightfully belong in state coffers. Various justifications have been given by Ministers of all governments and Members of Parliament for continuing what is an outrageous, if not illegal, practice. Ironically, these justifications are now voiced at a time when a controversial tax – VAT – has been increased, and other measures are in hand to address a serious national debt crisis.

These sales of vehicles imported duty free appear to be tolerated by the government as a way of providing MP’s with financial resources to fulfill their public duties. In no sense is this legitimate. Subsidies to any one – be they farmers or parliamentarians – must be authorized through the national budget that is subject to public scrutiny.

3. COPE Proceedings and the Central Bank Bond Issue

Reports of the Auditor General, of the Public Accounts Committee (PAC) and the Committee on Public Enterprises (COPE), are long established mechanisms for ensuring regularity in financial transactions and identifying irregularities, including corruption in public sector institutions. The bitterly divisive and intensely adversarial proceedings in COPE meetings dealing with recent government bond issues, including the conduct of the Central Bank in the matter, do not inspire public confidence. The core issues before COPE were alleged irregularities in the auction of government bonds, which are estimated to have caused massive losses to government and to the public, and to identify those responsible for those irregularities. The truth of any allegations of such wrongdoing must be determined after a full inquiry with due process in appropriate fora.

We are glad that a consensus has at last emerged within COPE with regard to the adoption of the report. It is critically important to ensure that investigations take place without delay, to hold those responsible accountable. Failure to do so will erode public confidence and create a perception that the government is seeking to protect identified individuals who can claim impunity because of connections to the government.

4. Sri Lankan Airlines Investigation of Financial Loss and Sexual Harassment

The Sri Lankan Airlines Board of Directors has failed to take action on the Weliamuna report which contains specific allegations of financial mismanagement and corruption, and serious allegations of sexual harassment. The statement of the Chairman at a press conference, petulantly dismissing allegations of sexual harassment in the organization as “personal matters”, is shocking. Sexual harassment is illegal according to the criminal and civil law of the country including our labour law. A recent judgment of the Supreme Court recognized the responsibility of the State to take action when sexual harassment is alleged in public institutions. Sri Lankan Airlines is a public institution. Failure to ensure accountable and responsible management in the institution represents serious inaction on the part of the government. This too creates the perception that some persons are being treated as above the law.

The Friday Forum calls upon the President and the government to respond immediately to these public concerns, which have also been highlighted in many fora. Interests of political parties, or their individual members or supporters, must not be placed above the public interest, if commitments to good governance are to be taken seriously and fulfilled. The President and the government were not elected to further personal, political or other agendas which have nothing to do with voters or the public interest, the statement adds.