Mar 26

A commentary by the Citizens’ Movement for Good Governance (CIMOGG) regarding the the 100-day Program of the government was published in the SUNDAY ISLAND of 8 March 2015 (www.cimogg-srilanka.org).  The key points made there were –

  1. No bill, other than one concerned with dealing with a national emergency, should be presented to Parliament on an “urgent” basis because such a procedure would not allow sufficient time for stakeholders and other members of the public to consider and comment constructively on the contents of the bill. Hence, any bill that is passed without enough opportunity for the public to submit their views should include a provision for compulsory review and amendment, as required, within a period of 12 months after becoming law;
  2. In upgrading the 17th Amendment, the selection of persons to hold positions of high responsibility, in particular, should be entrusted to an independent body (Constitutional Council, Public Service Commission or similar) on whose advice alone the President or Cabinet should appoint such persons;
  3. The Commission to Investigate Allegations of Bribery or Corruption (CIABOC) should be given all necessary resources to carry out the huge load of work which has been entrusted to it;
  4. CIABOC does not initiate investigations on its own. Its responsibilities invariably commence from the need to inquire into and act on the allegations that members of the public forward to it. Consequently, it is inevitable that any action that can be taken on representations made by the public will be several years behind the date of the alleged acts of corruption. Patently, more timely action is required. Therefore, it is our view that a Permanent Assets Monitoring Commission (PAMC) needs to be created with comprehensive authority to carry out obligatory, contemporaneous checks on the compatibility between the legitimate income, expenditure and changes in assets of specified persons;
  5. The PAMC must be given unrestricted access to the income tax returns filed by the specified persons, ie. those who occupy positions where there is potential for large-scale corruption. This category of taxpayers would comprise no more than about 1% of the total number of taxpayers. By having an efficiently functioning PAMC, the long delays that are bound to occur by waiting for belated, random allegations by whistleblowers may be minimized. A simple amendment to the secrecy clause of the Inland Revenue Act would be required to allow the PAMC to function effectively. Despite this amendment, the level of confidentiality will be higher because there would be no need to submit these details to the Elections Commissioner or to one’s head of department.

Numbers of Ministers, Deputy Ministers, State Ministers and Crossing-Over – It is widely accepted that a small country like Sri Lanka does not need more than 25 Ministries, if not fewer. Why our leaders have outrageously exceeded this number over the last few decades has been due to the basically corrupt practice of bribing Members of Parliament (MPs) in the Opposition to “sell” their loyalty to the ruling party.  The first requirement to eliminate this type of prostitution would be for the proposed new Constitution to forbid cross-overs of MPs.  An MP who is voted in by his electorate on the basis of the program presented by him before his election should not be permitted to abandon his program and adopt the program of some other party.  It must be incumbent upon him to resign his seat and face a fresh ballot at such time and under such restrictions as the new Constitution shall permit. We understand that such a condition is being considered but remain wary that we may be faced with yet another “slip between the cup and the lip”.

We had hoped that, for the two years or so it would take to write a satisfactory Constitution to safeguard the interests of the people in preference to those of our “rulers”, the members of the Opposition would forget their greed and not insist on being rewarded with a superfluity of ministries.  After all, they proclaim from dawn to dusk that their consuming desire is to serve the people!  Our legitimate fear is that, whereas the rivalry between political parties would normally be considered to be a check on the excesses of the ruling party, the joining up of political parties with a proliferation of ministries will tend to make it easier for a greater number of MPs to line their pockets at the expense of the public.

We hope that President Maithripala Sirisena and Prime Minister Ranil Wickremasinghe will be mindful not to betray the trust that the people placed in them on 8 January 2015, and keep a firm hand on the reins.  A first step in this direction would be the immediate creation of the PAMC.

National Executive Committee (NEC), National Advisory Council (NAC) and Oversight Committees – The NEC is a temporary body, consisting of representatives of political parties, to meet current political exigencies.  It is expected that it will cease to exist after the next parliamentary elections are concluded, if not before.  The NAC, on the other hand, would presumably be a permanent body of representatives from various professional and stakeholder groups.  Although the intentions behind the idea of having an NAC are good, it is foreseen that there will be many an obstacle to be faced in getting it set up because it is not going to be easy to decide which groups or individuals should be included in the NAC, and who may be excluded.  If professionals are thought to be indispensable, what would our farmers or fisherfolk say?  Moreover, it is not clear at what point in the lawmaking process the NAC’s advice and that of the prospective Oversight Committees would be sought.  The details of how the NAC will fit into the legislative process should be explained soon so that the public may contribute their suggestions for refinement.

Substandard Parliamentarians, Electoral Process and the next Parliamentary Elections -

There is no doubt that the public regards the majority of MPs as of rather questionable honesty but extremely cunning at using their positions to enrich themselves unlawfully.  In the 7 December 2014 issue of the SUNDAY ISLAND, we wrote:  “If there is anyone naive and charitable enough to think that the majority of MPs in a government in power in Sri Lanka do not amass wealth by robbing the People, MP Mahinda Amaraweera has reportedly said a mouthful to disillusion such innocents.  He has stated that the MPs of the UPFA have collected enough assets during their past terms of office and would, consequently, be less likely to want to acquire yet more wealth upon re-election, unlike those currently in the UNP who, in his view, would want to make a gigantic killing quickly to make up for the long period that they have been deprived of the chance to indulge in large-scale plunder of the People’s assets!”  In the context of the decline in the integrity of our politicians over the generations, a National Unity Government will experience some serious potential negatives. Citizens must be more vigilant than ever to prevent the negatives from outweighing the positives.

It is obvious that, if election by proportional representation under the present Constitution is retained for the forthcoming parliamentary elections, we shall have most of the same robbers returning to the scene of their crimes for a second helping.  Provisions on the lines of the first-past-the-post-plus-proportional-adjustments-system, even though not ideal, would be a significant change for the better.  If this change is not made by the National Unity Government before Parliament is dissolved, it would be a terrible disservice not only the small group of brave people (including President Sirisena and his family) who risked life, limb and possessions to get rid of government by the villainous 18th Amendment but also to the long-suffering people of Sri Lanka.

Delays in Fulfilling the Promises made in the 100-day Program – We have reason to believe that those who decided to help the “Common Candidate” had originally intended to set themselves a tough time limit of only 180 days to accomplish what, most ill-advisedly and without much forethought, was later compressed into 100 days.  Inevitably, the backlog is increasing by the day.  The delays are mounting up but they can be forgiven only providing that the extra time gained is spent on getting things done correctly rather than being messed up at high speed.  Haste will end up in waste.  Trying to live up to an unrealistic schedule will prove to be a disastrous mistake.  It would be much better for Sirisena and Wickremasinghe to admit that some of the items in the 100-day Program are not capable of being done within the time allowed. They should take the people (who are by no means as stupid as many of the “elite” think they are) into their confidence, ask for more time for their program, and do correctly from the outset whatever remains to be done.

Dr A.C.Visvalingam
President, CIMOGG

Mar 16

The 100-day Programme (“the Programme”) of the government had obviously been worked out in such secrecy that there would have been no possibility of subjecting any part of it to public discussion ahead of the announcement of its details.  Within a few days of the Programme being launched, the Citizens’ Movement for Good Governance (CIMOGG) stated: “We doubt whether the 100-day Programme is totally achievable within that limited time frame but it is only by having an ambitious target that a substantial improvement over the status quo can be effected”.  On account of its special relevance to the Programme, we should also like to refer to our article titled BILLS AND URGENT BILLS published in October 2007 (www.cimogg-srilanka.org), wherein we have emphasized that at least three months should be given to all stakeholders to contribute their views on every draft bill presented to Parliament other than those that deal with national emergencies.  Legislation passed during the 100-day period, on account of the prior commitment made, would not have the benefit of a 3-month review period to receive adequate inputs from the public.  Therefore, some other arrangement should be made.

Upgrading the 17th Amendment (“17A”) – In December 2005, we identified the need to refine 17A but those who are now busy rejuvenating it in accordance with their own ideas have not called for the views of the public on this matter.  We deal below with just one fundamental issue regarding 17A.

A key feature of 17A that needs reconsideration is that the terms of reference of the Public Service Commission (PSC) cover only the appointments, promotions, transfers and disciplinary proceedings relating to the relatively lower levels of those in government service but the appointment of senior officers, chairmen of authorities, boards and corporations, heads of department, ambassadors etc are largely reserved for the President to recommend at his will and pleasure to the Cabinet, and obtain its approval, which, as far as we know, is never withheld.  It is debatable whether we should continue to fritter away the skills, experience and objectivity of carefully chosen persons of eminence and integrity in the PSC to engage themselves solely with the concerns of lower level employees of the State apparatus and not utilize such skills, experience and objectivity to help in selecting the right persons for the much more critically important positions that are located higher up the ladder, the holders of which positions could in turn be expected to attend more efficiently to the needs of those with less onerous responsibilities.

There are bound to be many other features of 17A that the public would like to modify but the Programme has no time for these.

Right to Information (RTI) – More than one version of an RTI Bill has been talked about over the years but some governments have not been keen to get any one of these versions passed in Parliament although Cabinet approval was obtained in one instance some years ago.  Certain countries have fairly good RTI legislation but we have not been able to evaluate whether the draft that is now being pushed forward will be as effective as the better ones elsewhere.  The reality is that most governments do not wish citizens to be given information that would encourage them to ask difficult questions which the authorities would prefer to avoid answering, most often to hide some impropriety related to governance, particularly the violation of fundamental rights and the robbing of public assets.

The Programme has not provided sufficient time for public comment.

Code of Conduct (Code) – Sri Lanka boasts of being home to four of the major world religions, all of which have preached for centuries that one should not kill or steal or lie or treat others unkindly, and so on and so forth.  Moreover, there is already a plethora of laws to prevent every kind of anti-social behaviour.  Consequently, we may reasonably forecast that individuals whose moral values are sound ab initio will automatically conform to the requirements of the proposed Code if adopted.  On the other hand, we need to ask ourselves whether there is even the remotest chance that the so-far-poor compliance with religious and good governance standards will be bettered even nominally by the adoption of a Code to promote good conduct.  There is every reason to doubt that the proposed Code will achieve anything tangible that our religions and laws have not accomplished to date.

Special Commissions to Investigate Allegations of Massive Corruption – Presently, the Bribery Commission has to receive a well-supported complaint (with documentary evidence) for it look into an allegation of bribery and corruption.  Even with this limitation, thanks to an energetic new Director-General, a remarkable acceleration of the investigations can be seen.  In order to maintain the momentum that is being generated, we trust that the Commission will be given whatever staff, finance and other resources it requires without the usual foot-dragging, intentional or otherwise.

The plan to have Special Commissions (in addition to the Bribery Commission) to deal with the more scandalous cases of robbing the People blind is seen as a means that will ensure that the connected investigations and legal processes do not get stuck in our legal system that has historically been achieving only a single conviction out of every 25 prosecutions initiated.  Patently, such Special Commissions could, if properly staffed and well equipped, be able to investigate cases of massive corruption, where it would be necessary to probe accumulations of unlawful commissions in overseas havens.  On the other hand, it would seem reasonable to suppose that these Special Commissions, too, would take action only after the Police and Attorney General have gathered sufficient evidence to initiate a sound prosecution, which would be akin to trying to get runaway horses back to the stable after such a long interval that the success rate is bound to be poor.

In view of the substantial lag that is inevitable between the commitment of an offence and its submission to a Special Commission, we see the need for more proactive, comprehensive, continuous, reliable and faster monitoring to identify the acquisition of those assets that have been funded by unlawful monetary commissions and concealed earnings, whether received locally or accumulated overseas and brought in under the disguise of foreign investments (that is, by foreign nominees acting as investors).  The detection of such crimes, without having to rely on prior complaints by duty-conscious citizens, is more often than not likely to be facilitated to a significant extent by the fact that successful cheats not only invest and squander their moneys overseas but also feel the overpowering desire to spend lavishly here on self-gratification and to show off their grand houses, super-luxury vehicles, designer jewellery, antiques, art works and other valuable possessions, and more recently to set up trusts to perpetuate their names and “philanthropic” reputations for the edification of future generations.

There are said to be around 400,000 citizens with tax files at the Department of Inland Revenue (DIR).  It is not likely that more than, say, 5,000 of these persons would be in positions where they would have the opportunity to subvert longstanding administrative and financial procedures and the laws of the land to defraud the people on a large scale.  Whereas the duty to monitor the compatibility between the declared income of an individual and his accumulated assets has been assigned to the Department of Inland Revenue (DIR), there is a justifiable perception that it is not difficult for tax evaders to influence the tax officers concerned to look the other way.  In other words, it is vitally necessary to have an effective parallel check on whether officials of the DIR are doing their job properly or not.

Towards this end, it is proposed that a powerful, small unit be formed under the leadership of three judges with experience in dealing with financial frauds.  It may be named the “Permanent Assets Monitoring Commission” (PAMC).  This unit should be staffed with a few accountants, lawyers and fraud investigators who have not worked for the DIR before.  It should be located in close proximity to the Head Office of the DIR.  The secrecy provisions pertaining to the DIR should be relaxed to the extent that, when the annual tax returns of anyone in the aforesaid group of 5,000 persons is received by the DIR, such returns should be photocopied immediately and forwarded, together with all relevant schedules, to the PAMC, which can separately ascertain whether the assets and incomes concerned are consistent.  A valuable control would be the availability of the PAMC copies of the annual tax returns to ensure that the originals will not be tampered with by the combined efforts of the tax evader and the relevant assessor to reduce the tax burden.  In addition, the PAMC must be empowered to have ready access to any tax file that may have a bearing on the information contained in a suspect return.

Conclusion – It is imperative that the legislation that is passed under the Programme should have an in-built requirement for public representations to be received within a period of 12 months thereafter – that is, after allowing extra time for the diversion of public attention to the forthcoming parliamentary elections and returning to some degree of normality.

Dr A.C.Visvalingam
President, CIMOGG