Feb 27
I have chosen as my topic “Promoting Good Governance in Sri Lanka”, which should be a subject of vital concern to every citizen.

I think that it would be best if I were to begin by telling you something about how the Citizens’ Movement for Good Governance came to be founded and what it has been doing for the past 15 years in the face of the formidable obstacles that have stood in its way.

One may safely assert that most Sri Lankans are extremely critical of our politicians but are not prepared to do anything to change the present system that mostly favours the incompetent and the corrupt.

Those of our fellow-citizens who are financially secure almost invariably choose to give all their attention to their jobsfamilies, friends, sports, hobbies, holidays, charitable activities, religious observances, medical problems, and so on.  Inevitably, very few prosperous citizens feel inclined to spend any of their time or other resources to promote good governance and the Rule of Law.

Unlike the well-to-do, the poor have every reason to attack mindless governance.  What they lack is credible leadership and the wherewithal to get properly organised as a powerful pressure group. In this connection, the public and the media may be inclined to credit the JVP with being the only political party that champions the cause of the have-nots.  However, I myself am quite certain that the JVP’s public endeavours on behalf of the disadvantaged constitute only a small component of its politburo’s overall agenda, which is a secret that is guarded so zealously that I am compelled to conclude that this agenda is unlikely to be in the interests of the bulk of the people.

Moreover, despite its organisational skills and slogans, the JVP has failed to activate the have-nots in sufficient numbers to achieve its anticipated goals.  The reason for the JVP’s limited success is that free education, free health services, Samurdhi payments, free land grants and similar forms of State subsidy have insulated the weaker segments of society in Sri Lanka from the desperate levels of poverty that have led their counterparts in other countries to rise up violently against their rulers.  In short, our citizens have not suffered enough to want to take the life-threatening risks that are required to participate in sustained agitation to bring about socio-political changes.

Hence, as the rich lead more or less contented lives and the poor are not poor enough in Sri Lanka, we have come to rely on a relatively small number of highly conscientious social activists to struggle on our behalf in order to secure our legitimate freedoms and rights.  There is no question that it was the unremitting efforts of our social and political activists that enabled us recently to get the 19th Amendment and the Right to Information law passed by Parliament, as well as to reduce drastically the level of threats faced by media personnel and the public.

Fighting corruption is always a tough challenge because it is those who have stolen the nations’ wealth who can afford to pay huge bribes and buy their way out of trouble easily by organising highly disruptive public protests and funding sabotage of various types.

Thinking along these lines, at the beginning of the year 2002, that is, fifteen years ago, three far-sighted men decided to try to get together a group of persons who had held high office in the public and private sectors to form an effective lobby to promote good governance and the Rule of  Law.  These three visionaries were Mr Elmore Perera, former Surveyor-General and later an Attorney-at-Law, Mr W.B.A.Jayasekera, former Chairman of the Mineral Sands Corporation and past President of the OPA, and Mr A.D.N.Fernando, former Secretary, Mahaweli Ministry.

I was one of the 150 persons who were invited to attend the inaugural meeting. What was called for by the three convenors was for the invitees to form a dedicated body to undertake serious lobbying to pressurise the government to get back to the Rule of Law. Perhaps predictably, by the time the second meeting was held, only about 20-30 persons who had attended the inaugural meeting turned up. Nevertheless, a sub-committee was formed and entrusted with the task of writing a constitution for the new body and deciding on a name for it. An interim constitution was soon prepared and the organisation was given the name CITIZENS’ MOVEMENT FOR GOOD GOVERNANCE, or CIMOGG for short.

It was also decided that the members of CIMOGG should themselves finance its operations without relying on outside donors who might have their own agendas. Thus, CIMOGG would be able to deal with any issue entirely on the merits of that particular issue. Highly-respected public figures like Mr James Lanerolle, Mr Walter Ladduwahetty and Dr Shelton Wanasinghe were successively elected President of CIMOGG, thereby giving our Movement a firm foundation.

Initially, CIMOGG concentrated mainly on public interest litigation and electoral reform. Mr Elmore Perera gave of his legal expertise and time free of cost to CIMOGG to file a number of public interest cases in the courts. Two of the more important cases that were taken up called into question the constitutionality of President Mahinda Rajapaksa’s actions in appointing judges to the superior courts without the concurrence of the Constitutional Council, as required by the 17th Amendment.

In the first case, in which Mr Susil Sirivardhana and I were the Petitioners, Justice K.Sripavan, then the President of the Court of Appeal, and now the Chief Justice, did not accept our arguments which claimed that the immunity conferred on Executive Presidents is not absolute. We contended strongly that the Courts are not barred from examining acts done by Presidents and declaring whether such acts are in conformity with the law or not. We referred to a much earlier Supreme Court opinion that had held that a President’s acts may be subjected to judicial examination, even though it was conceded that defaulting Presidents could not be sued directly. Justice Sripavan nevertheless insisted that the President was protected by a concept referred to by him as “blanket immunity” and, consequently, he did not give us leave to take the matter any further. We are not convinced even to this day that Justice Sripavan was right but there was nothing further that we could do then.

In another case, in which retired Army Commander General Gerry de Silva and I were the Petitioners, we challenged, in the Supreme Court itself, the appointment by President Rajapaksa of two judges to the Supreme Court without the concurrence of the Constitutional Council. Possibly because of Mr Elmore Perera’s uncompromising stance in pursuing his arguments in the Courts – and undoubtedly for other reasons which it would take me too long to explain – Mr Perera was told by the senior judge of the two-judge bench that heard our petition that Mr Perera would be given only 30 minutes to explain the implications of the material contained in our Petition even though it contained 64 paragraphs.  This kind of arbitrary, predetermined time limit was against the Court’s normal convention of allowing Counsel a reasonable amount of time to explain the finer points of what is contained in a petition or any other document. After this strange start, the order in this case was made in less than one minute without any considered discussion regarding it by Acting Chief Justice Nihal Jayasinghe and Justice Raja Fernando, who were the two sitting judges.

A day or two later, we saw that the Court’s order, as recorded in the journal, contained just three sentences that I shall now paraphrase from memory –

  1. Leave to proceed is refused;
  2. The Petitioner Elmore Perera has filed this petition frivolously, with a collateral purpose;
  3. The Attorney General to look into the matter of charging the Petitioner for abusing the process of law and wasting the time of the Court.

A couple of days later, I received a telephone call from President’s Counsel Desmond Fernando, past President of the International Bar Association, expressing his shock about the threat of punitive action against me and General de Silva.  I reassured him that I was not in the least bit worried because the judges who had made the order had self-evidently not read even the first page of our Petition because, if they had done so, they would have known that Mr Elmore Perera was not the Petitioner but was only performing his duties as our Counsel. Mr Desmond Fernando had then privately conveyed details of this serious error to Justice Raja Fernando. 

A few days after this intervention, it was found that the second sentence of the order that had referred to Mr Elmore Perera as the Petitioner, had been struck out from the journal entry which had been made in the open court.  By virtue of this irregular deletion, General Gerry de Silva and I were restored to our roles as the Petitioners. However, this meant that the Attorney General was now obliged to come after General de Silva and myself.

Meanwhile, in another connection, Mr Elmore Perera, who was proving to be a thorn in the flesh of the judiciary, had been suspended from acting as an Attorney-at-Law. His period of suspension totalled just under an astonishingly disproportionate nine years! This outrageous punishment was meted out by Chief Justice Sarath Nanda Silva who rode rough-shod over the Supreme Court’s own rules governing disciplinary action against Attorneys-at-Law, disregarding even the most earnest submissions made by Mr H.L.de Silva, President’s Counsel.

After Mr Elmore Perera was silenced in this manner, General de Silva and I had to appear in the Supreme Court on several occasions, over several months, but were not asked even a single question by the Court regarding our position on the matter. In the end, the Attorney General was told by the Chief Justice, on his own initiative, that it would not be necessaryto proceed with any action against General de Silva and myself. The former Army Commander and I were thus mercifully denied enjoying some cost-free State hospitality at Welikada.

From this point onwards, as a consequence of being deprived of the dedicated services of Mr Elmore Perera, CIMOGG had to give up totally its forays into public interest litigation.

Going back now to the period from the year 2002 to 2004, CIMOGG had worked out an electoral system that was designed to empower citizens at the periphery to enjoy a reasonable measure of self-government. These proposals were presented by CIMOGG in Parliament itself to the Dinesh Gunawardena Committee for Constitutional Reform. Nothing was achieved by this initiative of ours because we were still politically rather naive and had not realised at that time that the real bottom line is that no Sri Lankan Parliament has ever had any serious intention of giving up even the tiniest fraction of its powers to those outside the Centre.

Notwithstanding this experience, CIMOGG, in late 2015, updated these early ideas, added some new material, and then submitted them dutifully to the Public Representations Committee on Constitutional Reforms, which had been appointed by Prime Minister Ranil Wickremasinghe. Twenty-four copies of our 35-page submission, were sent by courier to this Committee which, however, did not bother even to acknowledge having received them.

Going back to the past once again, it was in the year 2005 that CIMOGG began sending articles relating to good governance topics to seven or eight English language newspapers. To our great disappointment, most of these journals showed no interest in our writings on good governance and the Rule of Law. It became fairly obvious that the owners and editors of these papers did not want to risk offending the government. It is only the SUNDAY ISLAND that continues to give us valuable space to this day.

To get the exposure that was denied to us by the media, CIMOGG created its own website in the year 2008 to carry all its English language articles. This site can be accessed at www.cimogg-srilanka.org.

I might also mention that, when we began to write our first articles in English, we had them translated immediately into Sinhala and sent them to the leading Sinhala language newspapers. Not one of the articles in Sinhala was published for reasons best known to the respective editors.

In April 2011, we decided to have the first 100 or so of the English language articles published in book form for the benefit of those who are not comfortable with computers and the internet. Over the last six years, Vijitha Yapa’s bookshops have not been able to sell even 100 copies of this book, although it is priced at 50% below the cost of printing.

In yet another effort, in September 2012, to reach ordinary Sinhala-speaking citizens, we got more than 120 of our English language articles translated into Sinhala and published in book form. Once again, priced at less than half the cost of printing, fewer than 80 copies have been sold to date.

As CIMOGG is not an entity that is easily discouraged, we have recently built a Sinhala language web site for all our translated articles. It can be accessed at  www.cimogg-sinhala.org. We are hopeful that at least a few of the Sinhala-speaking public who access this web site will begin to appreciate the necessity and importance of their participation in promoting good governance.

Having spoken so far about CIMOGG’s rough ride in trying to foster interest in good governance, we need to have a look at what is going on currently.

Recalling the events of 8th January 2015 and the victory speech made by Mr Maithripala Sirisena, many of us were overjoyed to think that we were replacing a cheap, narcissistic, brutal and dishonest political dynasty with a patriotic coalition of sorts. The speedy repeal of the 18th Amendment and the passing of the 19th Amendment encouraged us to think that we were on the right path. The virtual disappearance of white vans and the freedom given to the media and our citizens to speak their minds without fear have also been major advances.

However, after only about a year in power, President Sirisena began to give greater priority to ensure the welfare of the Sri Lanka Freedom Party and to strengthen his own hand rather than to his obligations to the country as a whole. It is now clear that he has decided to fight not only for his personal survival but also to ensure that the SLFP does not get weakened to the point where the UNP smothers it totally. For this endeavour, he has gathered around him some of the most unscrupulous thieves of Ali Baba’s gang.

Given this background analysis, it should now be less difficult to fathom why, when Minister S.B.Dissanayake recently proposed to the SLFP that the Executive Presidency should not be abolished and that President Sirisena should seek a second term of office, President Sirisena remained seated silently like an Egyptian sphinx. He did not reject Minister Dissanayake’s self-serving and servile proposalas we would have expected him to do, by stating categorically that he would never ever dream of breaking the promises that he had made so publicly and earnestly to all the people of Sri Lanka, just two years earlier.

At the same time, the UNP fears that it cannot, on its own, prevail against a coalition of a united SLFP and a few minor parties. It is, therefore, in the UNP’s political interests to do whatever is possible to keep the SLFP divided more or less equally so that the two fragments would dissipate their energies squabbling with each other but without disintegrating totally. We believe, therefore, that the UNP will not go to the extent of weakening excessively the so-called Joint Opposition.

Having given sufficient room to the SLFPers who are now Ministers in the government to continue to line their pockets handsomely, the UNP has now presumably given the same freedom to at least some of its own members to collect enough money, inter alia, to fill up its coffers to fight the next couple of elections. What I am postulating is that, for the reasons that I have mentioned, there has been little incentive over the past two years for the main political parties to eliminate corruption despite the people’s fervent hopes.

It remains the duty of conscientious citizens to continue with the unending war against corruption and become even more determined whenever even a small battle is won.  CIMOGG’s hope is that, with the passage of time, more and more of our citizens will come to realise that it is only by being vigilant and keeping up the pressure on our MPs that this generation would be able to bequeath to its descendants a less debased country than we now have.

Before concluding my talk, I should like to mention that the phrases “good governance” and “yahapalanaya” were not employed very much by anyone other than CIMOGG until the beginning of the year 2014, which was when we noted that President Mahinda Rajapaksa was beginning to use these terms with increasing frequency.  This was the time when, we believe, President Rajapaksa was warned by Dr P.B.Jayasundara that his lavish spending was going to catch up with him rather sharply in 2015. This was undoubtedly the real reason why the Presidential election was advanced by two years. Once it was decided that an election had to be held, and that, too, as soon as possible after the President’s birthday, his trusted astrologer conjured up an auspicious date, and all of us know what happened thereafter.

I shall now make a few very brief comments on the need for a much better Constitution than we now have.

Our present Constitution allows plenty of room for incompetents and criminals to be elected to Parliament with the sponsorship of unscrupulous party oligarchies. The Constitution should contain the stipulation that election candidates fill in an application form that gives details of their age, gender, secondary education, higher education, professional education and experience, current employment, and a resumé of the social service work that they have done. They should also declare whether they have faced criminal proceedings of any kind and what were the outcomes of such proceedings.  Copies of the completed forms should be distributed to all the households in the electorate so that voters may be able to compare the relative merits of the relevant contestants.

Under the present Constitution, too much unfettered power and discretion are given to the President and to Ministers, who grossly abuse such power and discretion as and when they please.  The President, the Prime Minister and Parliament should be required to concentrate on legislative functions and limit their interference with the functioning of the Judiciary as well as the administrative machinery of government, including especially the Attorney General and the Police. In other words, the separation and independence of the legislative, executive, and judicial functions of the government should be enhanced drastically.

There is much more to be said regarding the Constitution but I have probably exceeded the time allowed to me and shall, therefore, stop here.

Dr A.C.Visvalingam

President, CIMOGG 

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