Nov 26

Chandrika Kumaratunga promised the people of Sri Lanka that she would abolish the Executive Presidency if elected to that position. Long after the promised deadline, she produced a draft of a new Constitution to get this done but, at the last moment, introduced certain transitional provisions designed to help her to retain indefinitely almost as much power as before. The Opposition UNP wrecked her self-serving plan but she continued as President until the end of her foreshortened second term.

It was during her period of office, in 2001, that the 17th Amendment was passed unanimously by Parliament, with a view to eliminating political interference in appointments, transfers, promotions and disciplinary matters pertaining to the Public Service and the Police; the conduct of Elections; the safeguarding of Human Rights; the Judiciary; and similar important sectors. It did not take her very long, however, to find a technical loophole to violate the 17th Amendment to justify her refusal to appoint a retired judge to be the Chairman of the Elections Commission, as recommended by the Constitutional Council, alleging that he was sympathetic to the UNP, which he denied strongly. This was the thin end of the wedge which, subsequently, has been driven in to its full depth to make a mockery of this most important constitutional amendment that Parliament has passed in its 61 years of existence.

Mahinda Rajapakse, too, promised that he would get rid of the Executive Presidency on becoming President but has shown no inclination to honour his word beyond making further promises. Both Kumaratunga and Rajapakse have taken cover for their various questionable acts behind the widely held, but erroneous, belief that, not only is a President personally immune from being hauled up before the courts while holding office but that he has “blanket immunity” that renders his acts proof against judicial examination and correction. The authentic position is quite different, and was succinctly set out by Justice Shiranee Thilakawardena in her dissenting judgment in a recent Supreme Court (SC) order. She held that the President cannot rely solely on a single Article of the Constitution to justify an act of his because he is concurrently under the same Constitutional mandate to act in accordance with the Doctrine of Public Trust. Simply stated, no Article of the Constitution may be given greater prominence than or read in isolation from another without being interpreted in accordance with the pith, substance and spirit of the entire Constitution. Inter alia, a President cannot claim that his personal immunity permits him to violate the Constitution or act unlawfully. Indeed, this issue had been cleared up sixteen years earlier by a bench of nine Supreme Court judges in Visuvalingam vs Liyanage [see (1983) 1SLR p203 onwards] but their dictum has received little public attention.

The Executive Presidency, as formulated in the present Constitution, does not include straightforward provisions for restraining a President from violating the Constitution and desecrating his oath to uphold the Law. The impeachment process that is included in the present Constitution is utterly cumbersome and totally inappropriate to deal with infractions of the Law by a President. Nor would the recent Opposition proposal to have the Executive President replaced by a figurehead President, together with an Executive Prime Minister, offer a good enough improvement, even if the 17th Amendment were to be purged of its shortcomings and otherwise strengthened. What is required is that there must be a clear and effective separation of the powers of the Legislature (Parliament), the Executive (President) and the Judiciary in order to eliminate significant conflicts of interest. Such separation is indispensable to achieve good governance and establish the Rule of Law. Both Parliament and the Judiciary must be independent of the Executive, if the Executive is to be prevented from acting illegally, inefficiently or without demonstrating proper accountability.

Generally, initiating and passing new laws is undertaken by Ministers, subject to approval by the Cabinet. Once Cabinet approval is obtained, the relevant bill is forwarded to Parliament for debate and voting. Ministers then employ the power of the party whip to make sure that Parliament will not reject the bill. Not infrequently, ill-conceived bills are rushed through without the public being given an opportunity to study and comment upon them. Similarly, the Budget is made by the Executive and is only subject to nominal debate, which, for the most part, has little to do with the soundness of the proposals made therein. Hardly a single vote is examined meaningfully, so that, for all practical purposes, Parliament ends up by acting only as a rubber stamp. There is no effective barrier to prevent Ministers subsequently diverting funds to various ends which Parliament never had in mind when voting on the Budget. All this is made possible because it is MPs who are made Ministers, keeping one foot in the Legislature and another in the Executive. Thus, it becomes impossible for Parliament to monitor, independently of the Executive, the manner in which Ministers spend the moneys voted under the various headings.

In order to rectify this unsatisfactory state of affairs, the Legislature must be freed to examine stringently bills proposed by the government or anyone else and pass laws to meet the needs of the People without being overpowered by Ministers (part of the Executive) who remain in Parliament. It is Parliament that finally votes on the merits of the policies and proposals promoted by the Executive. Hence, it has the solemn duty of controlling the manner in which State revenues are collected and disbursed by the Executive. To do this satisfactorily, it should have fully functional and effective multi-party Parliamentary Committees, preferably chaired by members of the Opposition. These Committees would monitor the work of each group of related Ministries in real time to make certain that Ministers do not embark upon projects which have not been properly studied and approved by responsibly appointed and technically proficient committees, who would ensure that project evaluation and tender procedures are carried out competently and transparently, in accordance with long-established administrative procedures. These Committees would act in a timely manner and not carry out greatly belated post-mortems like COPE (Committee on Public Enterprises) or PAC (Public Accounts Committee).

The Citizens’ Movement for Good Governance (CIMOGG) considers that one of the key requirements to help attain a proper separation of powers is that any MP who joins the Executive, by being given appointment as the Prime Minister, a Minister or a Deputy Minister, must resign from Parliament and be replaced by whoever had gained the next highest number of votes from the relevant district, or on some other acceptable criterion. By adopting this arrangement, the Executive would be excluded from Parliament and thus be prevented from exerting undue political pressure on the Legislature. The procedures to be adopted to get Ministers to respond to questions raised in Parliament can be worked out on lines parallel to those followed by other countries where the separation of powers is well established.

During the present highly critical election period, the public needs to press for constitutional changes on the lines indicated above if Sri Lanka is to have any hope of becoming a truly democratic, law-abiding and prosperous nation. Political parties which update their manifestos to provide for the extensive separation of powers should be supported during the elections but, more importantly, kept thereafter under the constant pressure of public opinion to deliver on their promises. Moreover, in order to help mobilise the vast pool of knowledge and interest that the public has in maintaining good governance, it is vital that the Right to Information Act is passed without any further political bluff and skullduggery. Indeed, the Chief Justice had recently emphasised the importance of this Act in the presence of the Minister of Justice, whom we call upon to take genuinely meaningful and speedy steps in this direction.

Dr A.C.Visvalingam

President, Citizens’ Movement for Good Governance

Nov 14

In 2007, in response to an application made to the Court of Appeal (CA) by the late Mr Peter Jayasekera, in the public interest, alleging that Sri Lanka Telecom’s (SLT) telephone charges were too high, the CA directed that the charges levied by SLT should be brought down by 25 per cent across the board. An appeal was then made by SLT to the Supreme Court (SC) against this order. Thereupon, the SC considered the facts and ordered that the charges should be reduced by 20-25 per cent. The SLT appealed against this order as well. As is customary in this type of case, the Attorney General (AG) was directed to look into the matter.

The AG has no telecommunications specialists in-house and, consequently, sought the advice of the Telecommunications Regulatory Authority (TRC) because of its presumed expertise and impartiality. TRC gave its advice by its letter dated 9 July 2007. However, this letter, according to representations received by CIMOGG, contained incorrect information and computations. One of the errors that the TRC is alleged to have made in its computations was that it did not take into account the fact that, owing to the expansion of the SLT system, operating costs per subscriber had been dropping substantially, year after year, for a period of several years, and that this trend was expected to continue. Had this lowering of operational costs been taken into account, the charges computed by the TRC would necessarily have been lower and SC may well have upheld the 20-25 per cent reduction that it originally ordered. Instead, based on the information furnished by the TRC, the SC lowered the originally prescribed reduction to a little over 9 per cent.

Even this reduction to 9 per cent does not seem to have satisfied SLT. What SLT appears to have done, after the SC gave its new order, was to juggle around with the various components which go into the make-up of telephone charges to give the impression that a 9 per cent reduction was being given to all subscribers. One of the juggling feats that SLT allegedly did was to reduce the time-based charge by a small percentage to give the impression of having lowered the tariff but surreptitiously introduced a new charge, where merely ringing another number and getting connected to it, would result in a charge of Rs1.50 being levied, even if the person at the other end does not pick up the telephone. The Citizens’ Movement for Good Governance (CIMOGG) understands that, when typical telephone communications by different classes of users are analyzed statistically for their duration, frequency, peak/off-peak usage etc by independent experts, using actual records, it is found that the present monthly charges generally end up even higher than those prevailing before the 2007 SC Order. We are told that rural and urban residential users are the most adversely affected.

Concerned by this, a small group of telecommunications-literate engineers recently filed an FR Application in the SC to ask it to order the TRC to comply strictly with the 2007 SC Order. However, the SC appears to have construed the Application to have been a request to revise the 2007 SC Order, which was not what the Petitioners had sought. It may be that the technical complexities of the subject may have blurred the picture. Leave to proceed was refused. Meanwhile, SLT has come up with a set of new packages, called “V-Talk”, which members of the public suspect contain further disguised increases of its telephone charges, even over and above the rates prevailing before the SC Order to reduce charges by 9 per cent.

As no one in CIMOGG (which includes persons with a fairly good mathematical background) was able to work out how to minimize his telephone bills within the V-talk scenario, we wrote to the Director General of the TRC (DG/TRC), on 28 September 2009, under registered cover, as follows:

“On inquiries received from members of the public, the Executive Committee of CIMOGG looked into whether the new V-Talk packages offered by SLT would give residential subscribers some relief from the ever-increasing size of telephone bills. We recall that, although the tariffs announced in November 2007 were supposed to reduce bills by 9% on average, bills generally went up rather than down, according to the complaints addressed to the press by several subscribers since then. As we do not wish to see subscribers being misled once again, we are writing to you now regarding SLTs new V-Talk packages.

“Even though SLT claims that both residential and business subscribers would benefit significantly by choosing an appropriate V-Talk package, we are perplexed, in the light of our own amateur (but not totally uninformed) computations, as to how this benefit is going to be achieved. In the circumstances, in the interests of telephone users, we request that you, as the official regulator of the telecommunications sector and necessarily unbiased guide, to give us your own original, authoritative computations and your present recommendations on the most suitable V-Talk packages for the various combinations of peak and off-peak usages, for not less than ten typical groups of subscribers with differing usage patterns. With this guidance, the public would be able to determine whether these packages are, in fact, genuinely better and, if so, to choose the most appropriate one for their respective patterns of usage. We shall, in particular, be obliged if you would let us have the assured minimum reduction to be expected relative to the November 2007 tariffs; and also its degree of reliability.

“Your very early response would be greatly appreciated.”

As there was neither acknowledgement nor response from the DG/TRC, we sent a reminder on 13 October 2009, together with a copy of the original letter, once again under registered cover, but the DG/TRC remains unresponsive to date. We are at a loss as to whether to attribute this reticence to arrogance, incompetence or callous indifference to the public’s concerns.

We take the opportunity to remind the DG/TRC that the TRC was created to safeguard the public interest in telecommunications-related matters and, inter alia, to check that the public are offered packages, the monthly costs of which can be worked out without difficulty by the average telephone user in the light of his own intended pattern of telephone use. One of the key functions of a regulatory authority in a liberalised market is to ensure transparency of information. Efficient regulatory authorities in other countries publish comprehensive performance indicators with authentic data which help to evaluate the cost-effectiveness of the services, ease of access and market competitiveness, thus enabling consumers to make informed choices. The regulator is obliged to see that service providers furnish clear, unambiguous and accurate information to the consumer.

There is provision in the TRC Act (Section 12) for a public hearing to be held on matters relating to its area of responsibilities and we have no doubt that there would be many subscribers who would wish to submit their 2006-2009 monthly bills to enable a factual assessment to be arrived at regarding the question of whether SLT’s charges have been reduced in line with the 2007 SC Order and whether or not V-talk is a further improvement in favour of the public. In the face of the silence of the DG/TRC and its possible implications, we call upon the full Telecommunications Regulatory Commission to arrange urgently to hold a public inquiry headed by an independent person or persons of unimpeached reputation, with the necessary telecommunications background, to ascertain the validity or otherwise of the positions taken up by the TRC and its critics.

Dr A.C.Visvalingam