The Rajapaksa ‘Sangamaya’: Creating employees and customers of citizens

The Rajapaksa ‘Sangamaya’: Creating employees and customers of citizens

Groundviews -9 Jan, 2013

The following video features the last couple of a minutes of a longer speech delivered by Dr. Nihal Jayawickrama at the launch of The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice, a collection of scholarly essays edited by Asanga Welikala, a Senior Researcher at the Centre for Policy Alternatives (the institutional home of Groundviews) on 21st December 2012.

In this excerpt, Dr. Jayawickrama offers a devastating critique of the Rajapaksa administration and its mode of governance. He notes that Sri Lanka today has moved beyond an Executive Presidency based model to a corporate governance mode for the entire country – the Rajapaksa ‘sangamaya‘ (or company) – as noted by the President’s brother, Basil Rajapaksa. After flagging in brief some of the serious challenges that arise from this mindset and mode of governance, Dr. Jayawickrama ends with a pertinent question: “What if the [Rajapaksa] ‘samagama‘ goes bust?

The speech in full can be viewed here.

The following biography of Dr. Jayawickrama is taken from The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice.

Nihal Jayawickrama, LLB (Ceylon), PhD (London), was the Permanent Secretary to the Ministry of Justice from 1970-1977, having been admitted to the Bar as an Advocate of the Supreme Court in 1962. Moving into academic life, he was Associate Professor of Law at the University of Hong Kong, where he taught public law, and the Ariel F. Sallows Professor of Human Rights at the University of Saskatchewan, Canada. He is the author of The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, 2002). As Chairman of the Hong Kong Section of the International Commission of Jurists, he was a principal commentator on constitutional issues in that territory in the period between the signing of the Sino-British Joint Declaration and the Transfer of Sovereignty. He was Executive Director of Transparency International in Berlin (1997-2000). More recently, he was the Chair of the Trustees of the Commonwealth Human Rights Initiative, London. Since 2000, he has been a UN consultant on judicial reform, human rights and anti-corruption strategies, and has worked with governments and judiciaries in Asia, Africa, the Middle East, and Eastern and Central Europe. He is currently the Coordinator of the UN Judicial Integrity Group.

Rape Of The Constitution – Murder Of The Supreme Court!

By Elmore Perera -January 9, 2013 

Elmore Perera

A Supreme Court that has, in Judge Weeramantry’s estimation, been “a great pride to the country and has been highly esteemed both Domestically and Internationally” is faced with the threatened ignominy of sudden extinction.

The character of “Braveheart” who dared to retrieve the irretrievable, if not fatal damage caused to the esteem of the Supreme Court, has been effectively assassinated and the assassins duly rewarded with “plum patronage appointments”.

The politicisation of the Judiciary that commenced with the Republican Constitution of 1972 and continued under the 1978 Constitution was arrested and reversed by Chief Justice Samarakoon, an “outsider” who was able to command the respect of the entire judiciary by his firm but fair actions carried out unobtrusively. When the Executive found that the Judiciary was keeping the Executive within their legally defined boundaries and was a hindrance to their brazen manipulations, it sought the connivance of the servile legislature to impeach the Chief Justice. This move was thwarted by a few MPs who had the courage of their convictions and took a stand for Justice and fairplay.

With the retirement of this “outsider” the Judiciary was deprived of strong leadership and “patronage appointments” to the Judiciary resumed. The commitment and resolve to resist extraneous considerations steadily weakened and corrupt practices proliferated due to weak leadership and overt patronage from the powerful Executive. The process of Court was increasingly abused by seemingly lawful acts of sections of the Bench and Bar. Had Raja Wanasundera J and Mark Fernando J been duly appointed Chief Justice, this slide would have been arrested and reversed. But the Executive ensured the subservience of the Judiciary by making patronage appointments at will.

The end of the 20^th Century saw the “fast-tracking” of blatant overt corruption in the Judiciary with the patronage appointment of Sarath N. Silva as Chief Justice. His exploits as Chief Justice are too well known by the Sovereign People of this Country, to need any recounting. He escaped certain impeachment by appealing to his political guardian (the President) to prorogue and then dissolve Parliament. Having successfully politicised the Official Bar as Attorney General, he made startling headway in politicising the Private Bar and even the Judiciary. He outsmarted J.R.Jayawardena by mis-interpreting the relevant Constitutional provisions to permit Opposition MPs to crossover to the Government at will, without losing their seats in Parliament. He revelled in issuing permits for sand-mining, directing the UGC to admit under-qualified candidates to Faculties of their choice, and directing the Judiciary to deliver judgments as desired by him. However, he overreached himself by purporting to decide on the retail price of Petrol. When he had to step down in mid – 2009, the Judiciary was in shambles.

In patent intentional violation of the Constitutional provisions under the 17^th Amendment, President Rajapaksa conferred on Asoka Silva J the patronage appointment of Chief Justice. This Chief Justice zealously carried out the dictates of the Executive without reversing any of the myriad unjust and unlawful acts of his predecessor.

Having successfully repealed the 17^th Amendment and enacting the 18^th Amendment to replace it, there was no Constitutional barrier to prevent the President from making a “patronage appointment” of his choice as Chief Justice. However, this was conferred on the only other “outsider” to be appointed to the Supreme Court after Samarakoon CJ, viz. Bandaranayake J who was, in any event the most senior Supreme Court Justice.

Contrary to the expectations of the President this bravehearted lady CJ set about undoing the extensive damage caused to the Judiciary with the active support of most Judicial Officers, in her typically unobtrusive and gentle, but firm manner. Covert and even overt pressure from the Executive was politely but firmly resisted. The President was in no mood to let the aura of an all-conquering, all powerful ruler, slip or diminish in any manner. His grandiose vision of omnipotence could not be dimmed. She could not be permitted to be a thorn in his flesh for eleven more years. She had to be impeached, come what way!

If, as Senior Minister Tissa Vitarana believed, Bandaranayake J had truly requested the President to give a “patronage appointment” to her spouse, then all that the President needed to do was to charge her, even belatedly, with sexually harassing him into making this “patronage appointment”. There was no need to direct/permit his elder sibling, the Speaker, to get 117 MPs to sign a blank sheet of paper and thereafter fabricate 14 misconceived charges.

The fact that the President has not done so leads to the inevitable conclusion that Tissa Vitharana has surely mis-heard or mis-interpreted what the President had in fact told him. On the contrary Vitharana not only continues to believe this but has also convinced his fellow-professional Vasudeva Nanayakkara to vote with him for the impeachment.

Where does all this manipulation leave us? The Supreme Court, in the exercise of its sole and exclusive jurisdiction to interpret the Constitutional provisions governing the limits of the powers specifically delegated to or conferred upon the legislature by the Sovereign People via. the currently valid Constitution, has unambiguously ruled that the power to decide on the guilt of a Judge can only be conferred by a law and not by Standing Orders of Parliament. The Deputy Speaker, a lawyer himself, declared unequivocally that the mandate given to the PSC by Parliament was strictly limited to investigation and report only, and specifically excluded arriving at any finding of guilt. The necessary implication is that the Speaker’s celebrated ruling on the matter was restricted to any proceedings of the PSC in respect of that specific mandate.

The Court of Appeal, in spite of death threats received, quashed the PSC findings on the CJ. The Speaker who had, on 8^th December, 2012 already announced in the House that the CJ had been found guilty of 3 Charges refrained from making the much publicised ruling that he was to make on 8^th January. The Deputy Speaker, lawyer, in a drastic departure from his confident assertion re the limitation of the mandate given to the PSC, speaking on behalf of the legislature said the impeachment motion has been already placed on the Parliamentary agenda of  business scheduled for this week and nobody could reverse it. He also said that there was no need for a ruling by the Speaker as he had already made a ruling re notices to appear in Court.

Disregarding the unambiguous rulings of the Courts, the legislature, relying on the Speaker’s interpretation of the Constitution, now plead that they are powerless even to postpone the debate, based on an arbitrary finding of guilt by the PSC, admittedly outside the mandate issued to the PSC. Even if, as claimed by the Deputy Speaker, Standing Orders do not provide for removal of an item placed on the agenda, the inherent power of Parliament certainly empowers them to save valuable Parliamentary time, by avoiding the discussion of a nullity. Taking a vote and purporting to confer validity to a finding already quashed by the Courts will be tantamount to a total breakdown of Law and Order and invalidate any claims to democratic government. Sri Lanka is on the brink of disaster! The only option available to a Statesman confronted with a situation such as this, is to somehow avoid such a catastrophe, by respecting the Court Orders and suspending further proceedings on the impeachment until a lawful procedure is put in place. The President can, if he wants to,  act like a Statesman, or turn a blind eye, and continue to assert that “The Supreme Court had no right to go against the legislature” in accordance with his own interpretation of the Constitution, whilst at the same time reiterating his respect for the independence of the Judiciary as a Senior Attorney-at-Law. The choice between serenity and certain turmoil is now in his hands. The ensuing few hours will determine the future of our blessed motherland.

*Elmore Perera, Attorney-at-Law, Founder CIMOGG, Past President OPA 

SC has no right to go against the legislature-MR

WEDNESDAY, 09 JANUARY 2013 

No one can betray the sovereignty of the people, and the Supreme Court has no right to go against the legislature, said President Mahinda Rajapaksa yesterday.
Addressing the ‘Swarna Purawara’ award ceremony that felicitated local government members at the Temple Trees, President Rajapaksa said that as a lawyer he had absolute confidence in the independence of the judiciary and therefore not only the judiciary but everyone must work to protect the independence and respect of the judiciary.

“High Court judges are appointed by the Chief Justice. The Chief Justice is appointed by the president. The president is appointed by the people. If the president commits an offence he can be impeached. For the impeachment a minimum of 113 Members of Parliament must sign. The Chief Justice must carry out the orders of the legislature. The unseating of the Chief Justice rests with legislature” he said.

He said that extraordinary things were taking place right now in Sri Lanka – things which could not be found in anywhere else in the world. However, he said he was committed to protect the independence of the judiciary.

“President Premadasa had a narrow escape from impeachment as the then Speaker Mohamed rejected those who attempted to impeach him. There are attempts to topple this government backed by the spirit of separatism and those who supported the LTTE, he said. “It was the JVP that said there were suspicions regarding the dealings of the husband of the Chief Justice. It was they who lodged complaints against him with the Bribery Commission. Now they are scolding me for the impeachment. The JVP says one thing in the morning and something else in the afternoon. But we cannot do that. We do what we say and we say what we do,” he said.

President Rajapaksa urged local government members to work always for the benefit of the people who elected them. Chairmen of local government bodies must not grab everything and they must give the opportunity for deputy chairmen and other members to advance. Some Chairmen never let go of the cheque book and keep it in their pockets all the time,” he said,
“The people are not for their representatives; the representatives are for the people. Therefore, people’s representatives must always be committed to serve the people. The government has launched a massive development drive and a massive allocation has been made for rural development. It is the responsibility of local government representatives to use these funds for the benefit of their people, said President Rajapaksa. (Sandun Jayasekera)

Wiping Out The Critical Intellect – Will the MR Push Us Into That Abyss?

Basil Fernando

By Basil Fernando -January 9, 2013 

Anyone who uses their capacity for critical thought would know that the courts are the final authority in the interpretation of law; this means that once the highest court makes a determination on a matter of law, it should be accepted and acted on. If there is any error, the way to deal with it is to refer it to a higher authority; for example, if a three bench ruling of the Supreme Court is thought to contain some error, then a reference to a bench with a higher number of judges could be requested. However, to reject an interpretation of the law by a superior court on the basis that one of the parties – such as the government – does not agree with it is simply unacceptable.

Anyone with some capacity for critical thinking would also know that when a court issues a writ, that also needs to be respected and obeyed.

Without accepting these premises, it is simply not possible for a rule of law system to survive.

If one wants to argue that the rule of law system is not necessary, then that is simply walking out of any rational form of government.

That is exactly the point that Sri Lanka has reached now. If the president proceeds to make an address to the parliament proposing the removal of the Chief Justice – when the Court of Appeal has held that the constitutional requirement of a valid inquiry, which should precede such an address, has not been carried out – then the president is deliberately contravening the constitution.

All other steps, such as the parliamentary debates on the address, the voting on the issue, the removal of the Chief Justice and the appointment of a new Chief Justice will be acts which are done in contravention of the constitution.

Rationally speaking, it is not possible to carry on with a working rule of law system thereafter. Rule of law is the foundation on which these constitutional principles are based.

When such a situation arises, what will be the consequences?

It will be established that court decisions lack authority.

The president and the parliament cannot say that, on the one hand, the courts do have authority, but that, on the other hand, they do not have to respect the orders of the court. When the president and the parliament themselves flout the verdicts of the courts, then the courts themselves cannot claim that their authority is respected at all. If an ordinary citizen fails to comply with courts orders, there are ways to deal with it, such as by way of arrest, imprisonment and even through contempt of court. However, when the president and the parliament flout the law, then the courts are not in a position to impose the law.

There have been rare occasions in the past when law enforcement authorities have dared to implement court orders regardless of the state or the political position of those who were disobeying such orders.

For example, in Pakistan, it was not long ago when the Supreme Court required the resignation of the prime minister after he was sentenced for contempt of court for disobeying an order of the courts. The prime minister, even though he did not agree with the order of the court, obeyed and resigned. The government accepted his resignation and appointed a new prime minister. That way, the government demonstrated to the nation that it respected the authority of the courts.

The next consequence of the impression that the courts are losing authority is the rapid spread of lawlessness.

The suppression of crime (and every other form of lawlessness) is one of the most important aims of a legal system. This is also one of the most difficult things to achieve in any society. There are many elements in society who would exploit a situation of lawlessness to their advantage. It is only the fear of legal consequences that makes many people comply with the law. Once there is a realization that the machinery of the law has its own problems, there are those criminal elements that would make the best use of such a situation. It may be someone who wishes to take revenge from an enemy; or it may be a person who wishes to steal a neighbor’s property; or it may also be persons who, for all kinds of reasons, want to find their way to gratify their sexual interest without the consent of others; and there are always persons who are thinking of ways to get a rich fast, by whatever means, such as breaking into banks or by way of many forms of fraud.  This list can be long and endless. When the courts lose their authority and their influence in society, people become victims of all these lawless elements.

A further consequence of such a situation is the loss of legitimate expectation.

Lawlessness produces low morale. People lose the capacity to make judgments on what can be rationally expected from their endeavors. When the society loses its rules, people develop the mentality that any misfortune may be fall them anytime. They preoccupy themselves with thinking of ways to ensure their security, as there are no organized arrangements in society to ensure their protection.

Corruption increases a thousandfold

When dispute settlements on the basis of law, carried out by legal agencies that are supervised by courts, are displaced, corruption enters into everything. Whenever there are personal or property disputes, all kinds of bribes would have to be paid to powerful persons, who often happen to be criminals of one sort or another. As violence becomes the way of dispute settlement, patronage of all kinds of persons is necessary in order to safeguard once legitimate interests. In fact the idea of what is legitimate and what is not loses all meaning.

These are only a few of the consequences of the kinds of decisions that Sri Lanka will be making within the coming few days.

Neither president nor the parliament can control the consequences of undermining the authority of the courts.

I wish to end this article with a personal note. Between 1992 and 1995, I was in Cambodia and was able to witness a society where the law and the courts had no place. At that time, I hoped, in the deepest part of myself, that the Sri Lankan political crisis should not developed into a similar situation as what I saw there. However, as I suspected and feared, we are moving in that direction. Much of what I have been doing in terms of human rights work in Sri Lanka was with the hope that we could convince each other not to walk into that abyss. However, tomorrow, the 10^th of January 2013, if the president decides to proceed with his address, we will be walking into that abyss.

If the president himself is taking us into that abyss, what can we say other than to repeat the local saying, ‘if the fence and the niyara devour the paddy field, to whom can we complain’.

Editorial -Sri Lanka faces its moment of truth

Cartoon of the day- 12 DECEMBER 2012

WEDNESDAY, 09 JANUARY 2013 

This week will probably be a week of destiny for Sri Lanka when we face the moment of truth and what our leaders and we do or do not do could reshape  Lanka’s history.

Our country – devastated by a thirty-year war, two insurrections and racial riots – is facing its gravest constitutional, legal and political crisis with democracy itself at stake. It is no longer a case of personalities, personal conflicts or power struggles, but a tsunami that is threatening the foundations of the people’s sovereignty – good governance, accountability and a balance of power among the Executive, the Legislature and the Judiciary. The Constitution emphasises that people are sovereign and therefore supreme. The people’s executive power is exercised by the executive presidency, their legislative power is exercised by Parliament, and the people’s judicial power is exercised by the courts of law. That is how it should be, but the crucial question today is whether it is to be or not to be.

Last week the Supreme Court in a historic judgment ruled that the impeachment process against Chief Justice Shirani Bandaranayake was unconstitutional. Supreme Court has the sole authority to judge whether any law is consistent with the Constitution. Based on this, the Court of Appeal on Monday quashed the report and findings of the Parliamentary Select Committee which probed the charges against the CJ.

The President, the ministers and all MPs have taken a solemn oath to uphold the Constitution. Anyone who violates the Constitution could be arrested, impeached or otherwise dealt with. The Supreme Court has ruled that the current impeachment process is unconstitutional, so as the Court of Appeal. If the UPFA coalition government decides to ignore the Court orders and decides to go ahead with the impeachment process, most legal analysts believe the government itself will be violating the constitution. Worse still it will be opening the hell holes for anarchy because when the authority of the independent judiciary is undermined it means a breakdown of the rule of law. That means the horror of street justice with the people including criminals, taking the law into their hands like the two gunmen who killed the Pradeshiya Sabha member in Kelaniya on Saturday night.

The Judicial Services Association comprising more than 200 District Judges and Magistrates, the Bar Association comprising more than 10,000 Lawyers, civil action and human rights groups both in Sri Lanka and abroad have appealed to the government to suspend the impeachment process. So have the United Nations, the Commonwealth and many countries in the international community.

Pride or arrogance, the desire for personal gain or glory, power or prestige are vices and a sign of weakness. If a mistake has been made in rushing ahead with what appears to be a politically motivated impeachment process, then the government would be acting wisely and with strength if it decides even at this late stage to suspend the impeachment motion and review the whole process. If not it might be a case of barbarians trying to break down the doors of the temples of democracy.

‘Stop Debating The Impeachment’ – Bar To Strike For Two Days

By Colombo Telegraph -January 9, 2013 

“The Bar Association of Sri Lanka strongly, unequivocally and with no reservations whatsoever condemns the decision to take up for debate the impeachment motion against her Ladyship the Chief Justice Dr. Shirani A.  Bandaranayake based on the findings of the Parliamentary Select Committee which was quashed by the Court of Appeal  and determined to be unlawful by the Supreme Court. The Bar Association has decided to call for all its members (in 78 Branch Associations) to refrain from attending to any Professional duty in protest on the 10^th and 11^th of January 2013 to express our deplorable condemnation.” says the Secretary of the Bar Association of Sri Lanka.

Issuing a statement the BASL says; “The Bar Association of Sri Lanka further urges H. E. the President of the Republic, Hon. Speaker and the leaders of all political parties representing the Parliament to honour and respect the determination of the Supreme Court which in terms of the Constitution of our country is vested with the sole and the exclusive jurisdiction as regards to Constitutional Interpretation and Determinations.”

“The Bar Association of Sri Lanka is seriously concerned about the negative and eroding impact that any action of the legislative and executive organs of the government to disrespect and dishonour such determination would have on the Rule of Law in this Country.” the BASL further says.

Situation Report By Lawyers Collective: Judges Require Protection

By the Lawyers Collective -January 9, 2013 |

On 8^th January 2013 the leaders of the Opposition Political Parties wrote to the Speaker and protested against the decision taken to take up the debate on the impeachment on 10^th and 11^th of January. Opposition Leaders reminded the Speaker that proceeding with the Impeachment debate is a serious violation of the Constitution. The Party Leaders sought a party Leaders meeting. See annexed Letter.

Judges Association have issued a statement urging all parties to respect the decisions of the Supreme Court. See the annexed statement of JSA.

Several threatening calls were received by two judges namely the President of the Court of Appeal  Hon. Justice Sri Skandarajah and Hon Justice Anil Gooneratne. Police have reported facts to the Chief Magistrates Court of Colombo. These two judges were among the Bench in the Court of Appeal that quashed the Report of seven members of the Parliamentary select Committee. When the Divineguma Bill was taken up for debate in Parliament large crowds, sponsored by the Government gathered near Parliament and chanted slogans against the judges of the Supreme Court.  Continuous state media attacks on the judges, the judiciary and the lawyers through posters have made judges and lawyers vulnerable for physical attacks. On 8^th January 2013, a group government sponsored by certain elements of the Government staged Satyagraha,   in front of the Chief Justice’s official residence.

Lawyers all over the country will be engaged in a two day strike, commencing from 10^th January 2013. Judges are expected to join in with similar actions. Please see the  BASL statement. Peoples March will commenced near the Supreme Courts, at 10.00 a.m on 10th January,  with the participation of lawyers, political parties,  trade unions, academics, civil society orgnizations and individuals.

Secret discussion between the President and Shirani

Wednesday, 09 January 2013

President Mahinda Rajapaksa has secretly visited Kirulapona last Saturday. It was for a secret discussion. The secret discussion had been organized by Ven. Uduwe Dhammaloka Thero. The discussion was at Ven Dhammaloka Thero’s Alan Methiniyarama temple. Sources say that the President had driven his own vehicle and was accompanied by one of his most trusted security personnel. Ven. Dhammaloka Thero had already got Supreme Court judge Shirani Thilekawardena and her sister, the Additional District Judge for Kegalle to the temple by then.

It is learnt that the secret discussion between the President and Shirani Thilekawardena had taken place for over an hour. The President had firmly said that the Chief Justice would be removed and asked Shirani Thilekawardena to be ready to accept the post of Chief Justice once it fell vacant.

Sources from Temple Trees said that the secret discussion had taken place around 9.30 p.m. and the President’s security had arrived at the temple afterwards.

Dhammika Kitulegoda heads the secret committee

Wednesday, 09 January 2013 

It is common knowledge that the clash between the legislature and the judiciary was created by the Rajapaksas. However, President Mahinda Rajapaksa with 40 years of political experience is good at somehow scoring points with everyone. None of the Rajapaksas have signed the impeachment motion and he is also working at addressing objections that are raised locally and internationally against the illegal act of impeaching the Chief Justice.

The President appointed an independent committee to address this growing dissention. The committee consists of a veteran in parliamentary and judicial affairs, a senior lawyer, a veteran banker and a well accepted member of the civil society.

It has been agreed not to publicize the names of the members of the independent committee since it is said it would affect the independence of the committee. However, sources said that former Secretary General of parliament Dhammika Kitulegoda has been appointed as the head of the independent committee.

Sources added that the parliamentary select committee (PSC) report on the impeachment probe has been handed over to the committee and that they are to study the report.

Video: CJ lawyers go public with defence

WEDNESDAY, 09 JANUARY 2013

Lawyers of Chief Justice Dr. Shirani Bandaranayake, Attorney-at-Law Saliya Peiris and Sugath Caldera,  went public with a detailed defense to the allegations made against her stating that every “dollar and cent” earned by the Chief Justice had been accounted for, as required by the law.

Attorney-at-Law Saliya Peiris and Sugath Caldera in a detailed explanation to the public for the first time since the charges were brought against the Chief Justice said that all allegations against her were unfounded and subsequently distorted.

Saliya Peiris said that none of the charges amount to “proven misbehavior or incapacity” as required for the removal of a Supreme Court judge by the Constitution.

“The fact that since a charge of bribery has been brought against her spouse does not in anyway fall within the ambit of proven misbehavior. If that is so any person could bring in any charge against a spouse and child of a judge compelling them to relinquish office. This is dangerous and the judiciary really isn’t safe,” he said.

Referring to the rest of the charges both Caldera and Peiris said that every asset and liability has been accounted for and declared as required by law and any insinuation to say otherwise is a complete distortion of fact.

The lawyers made these remarks at a media briefing held at the Organisation of Professionals Associations yesterday.

“The buying of the house at Trillium residencies has been a main issue. The house was bought on behalf of her only sibling and every remittance from the Commonwealth Bank to NDB has been accounted for by way of the advice slip. Every remittance had very clearly indicated the purpose of remittance as being the buying of a house,” the lawyers said. (Hafeel Farisz)

►WATCH

“Give her justice”

The lawyers of the Chief Justice Saliya Peries and Sugath Caldera speak at a media briefing today in which the refuted allgetations made against the Chief justice in detail. The lawyers said that “every dollar and rupee” was accounted for and declared by the CJ and asserted that she is willing to face an impartial inquiry at any given time.Pix by Samantha Perera-WEDNESDAY, 09 JANUARY 2013

It Is Clear That Rajiva Wijesinha Alone Cannot Make Things Happen

By Kath Noble -January 9, 2013 

Kath Noble

Rajiva Wijesinha has been attracting attention in recent weeks due to his unfortunately rather lonely stand from within government ranks against the impeachment of the Chief Justice. It would have been easy to keep quiet, so he deserves a round of applause.

But it is the effort that he has been making to engage with people in the North and East to find out what they need or want to rebuild their lives that is even more important. Unlike other government politicians, who meet this constituency only when they are laying a foundation stone for an infrastructure project that they are hoping to take credit for – or get a cut of – without the slightest concern as to whether it is actually a priority, Rajiva has been listening to them and communicating what he has been told to the rest of us through his column in the Daily News. Of course what people feel confident to share and what that newspaper cares to publish can be nowhere near the whole story, but even a very partial account is valuable in understanding the ground situation in the former conflict areas.

One conclusion that he has come to as a result of this experience is that to get things done there is a desperate need for transparency in government operations. In one of his recent articles, he has urged action on a Right to Information Act, which he points out was one of the recommendations of the LLRC.

We’ll soon find out whether being included in the much referred to LLRC Action Plan means anything!

A Right to Information Act is long overdue.

The LLRC Report notes that such laws have been adopted by virtually every other country in the region, including India, Pakistan, Bangladesh, Nepal and the Maldives.

Senior politicians in those countries have realised that it is only way to ensure that their policies are implemented. Bureaucracies throughout South Asia – and indeed worldwide – suffer from inertia and corruption, and they are subject to many other influences and pressures than those coming from the top. Interference by juniors is also an issue, and it can be difficult to embark on an initiative to discipline them when their indiscipline has become part of the political culture. As a result, people get disenchanted, either with their party or with the system as a whole. Of course a Right to Information Act makes it easier for citizens to expose the wrongdoings of ministers and presidents as well, but it is now generally recognised that the benefits outweigh the costs, even for them.

From the point of view of citizens, this is wonderful news, since the legislation can be an extremely powerful tool in challenging budding dictators, never mind democrats.

The need in Sri Lanka is clear.

There is no longer any such thing as ‘information’ in this country. There is only hearsay.

Consider the rather innocuous matter of expenditure on Deyata Kirula. Last week, the UNP blamed the Government for spending Rs. 26.5 billion on what they dubbed a carnival when so many people have been affected by flooding. The money should be used for their rehabilitation, a spokesman argued, since it is clearly not possible to build a house within the allocated sum of Rs. 100,000. So far, so easy to follow. But then the Government claimed that the exhibition would cost only Rs. 40 million, with the remainder of the allocation of Rs. 60 billion being for development work in the four districts of Ampara, Batticaloa, Trincomalee and Polonnaruwa. And the JVP added that of the Rs. 25.5 billion spent on Deyata Kirula last year, in Anuradhapura, only a single building remained, supposedly a paddy store, but it was located so far away from paddy areas that it could not be used.

And we are lost!

As things stand, there is absolutely no reason to trust the Government and absolutely no reason to believe the Opposition.

Whoever happens to be near a microphone says whatever comes into their head, never mind whether it is true or even whether it corresponds with what they said yesterday. And tomorrow they will have no qualms in telling us the exact opposite.

Most people respond by closing their minds, no longer willing to try to separate fact from fiction.

A Right to Information Act can help to get out of this dangerous rut.

Properly formulated, it would do a great deal towards restoring the category of ‘information’, by forcing the Government to give truthful answers to questions put to it by citizens or face the consequences in court.

At the risk of sounding like a spokeswoman for the Indian High Commission, having suggested in my last column of 2012 that its National Rural Employment Guarantee Act could be a model for Sri Lanka, I shall dare to suggest in my first column of 2013 that its Right to Information Act is also worthy of emulation. (Since I can already picture a small army of over-sensitive nationalists hyperventilating at their keyboards, I would like to offer as some kind of compensation my sincere belief that India has even more need of these progressive laws than Sri Lanka!)

A key feature of the legislation is the penalties that it imposes on officials for failing to respond within given deadlines, for giving incorrect or incomplete replies and for destroying evidence, including fines to be paid by them personally.

That this is effective may be seen in the growing number of activists who are being harassed or attacked.

Researchers who have compared the laws of the 93 countries that have adopted a Right to Information Act to date consider India’s to be the second best. By comparison, the UK is ranked 25 and the US 39. (Seehttp://rti-ranking.org/)

This is not a matter of the enlightenment of its leaders, although it is surely not a coincidence that both the Right to Information Act and the National Rural Employment Guarantee Act were passed in 2005, just after the return to office of Congress with the support of the Left Front. Rather, India does well in the global ranking because its Right to Information Act was the result of a sustained and well-supported campaign by civil society, and civil society is strong enough to prevent Manmohan Singh from succeeding in his now regular attempts to water it down.

Sri Lanka must take note.

I recall writing in support of a Right to Information Act in 2010, when it was reported that the Ministry of Justice was preparing a draft. But nothing emerged, with no constituency pushing for it.

Now the LLRC Action Plan says that it is the responsibility of the Media Ministry.

Even if the Government finally makes up its mind to pass the legislation, without proper scrutiny, Sri Lanka is bound to end up with the world’s worst example.

For a long time, the category of ‘civil society’ in Sri Lanka was practically non-existent, since all space was occupied by NGOs and they were totally discredited by the positions they took during the war, among other things. There was little hope of them bringing pressure to bear on the Government. Indeed, although people in other countries were ever ready to listen to them, they didn’t seem to have much idea of how to use the vast sums of money they were getting to influence Sri Lankans.

The Government would have us believe that nothing has changed. All dissent – even very mild disagreement – is said to be connected to NGOs and foreign plots, usually terrorist-inspired.

But the more extraordinary its actions, the more obvious it is that this is not the case. With the impeachment of the Chief Justice, another segment of ‘civil society’ has risen up in protest – lawyers. Like academics before them, whose three month long trade union action was the most effective challenge to the Government since the end of the war, in the sense of starting a debate on an issue of genuine importance, they are part of the mainstream. It isn’t easy to dismiss them. When they come out onto the streets, unlike free trade zone workers and fishermen, they are not subject to live firing by the Police. At least, not yet. And their real strength lies in convincing people, not in waving banners. They enjoy considerable respect among the rest of the population, and they have the capacity to lead them, if they so wish.

Let’s hope that they also take up the cause of a Right to Information Act, since it is clear that Rajiva Wijesinha alone cannot make it happen.

*Kath Noble’s column may be accessed online at http://kathnoble.wordpress.com/. She may be contacted atkathnoble99@gmail.com.