Jun 09

Until such time as the Elections Commission is empowered and obliged to demand more strict academic, professional and other relevant performance criteria to be met by those aspiring get on voting lists to contest for seats in Parliament and lesser elected bodies, we are going to be burdened with people’s representatives of whom the majority are unqualified to hold public office.  It is embarrassing for Sri Lankans to have to admit to the world at large that 94 of our MPs do not even have the General Certificate of Education at O-level, only about 68 MPs have passed the GCE O-level examination, about another 38 MPs have obtained GCE A-level passes, and there are barely 25 MPs who have a university degree.  Consequently, other than being blessed with an excessive capacity to indulge in trivial debating exercises – too often personal or crude or both – the majority of our MPs have not had the benefit of the basic mental training required to comprehend and contribute usefully to proceedings which deal with the countless complex issues that have to be evaluated and voted on by the Parliament.

Getting back to basics, it is no secret that advertisements that call for applications to fill vacancies of every imaginable kind insist upon some kind of academic qualification from Year 7 or so to PhD-plus, depending on the nature of vacancy to be filled.  It is only in the case of manual workers and Parliamentarians that there is no stipulation regarding the minimum academic or professional qualifications required.  Considering that Parliament is responsible for the collection of taxes of every kind from the people and the efficient disbursement of the funds so collected, both running into trillions of rupees, could there any excuse for allowing citizens without a good academic, professional and administrative background to decide on what and how this hard-earned wealth of the people is to be spent? Whether the proposed new Constitution is going to address this deficiency is still in doubt.  It is obvious that something positive should be done in the short term while we wait for the new Constitution.  In other words, it would be prudent for the present to find a way of dealing with the problem of making do with MPs that we have, especially those without O-level or A-level passes?

To digress for a moment, in the early days of learning to use table-top personal computers, one had recourse to a series of books titled “PCs for Dummies”, “Microsoft Word for Dummies”, “Lotus 1-2-3 for Dummies” and so on.  For those who could not find the time to go for computer classes, these books were a source of immense help to improve their computer skills.  However, as well-known computer programs were progressively made more and more comprehensive by software writers, their “Help” features began to be expanded and integrated into the main programs.  Thus, the need for books for “Dummies” diminished rapidly as most tasks could now be handled without recourse to external instructional media.

In current circumstances, it is surely a great pity that no book has been written at any time with the title “Governance for Dummies”, with Sri Lankan parliamentarians in mind, to enable them to understand the fundamentals of the more frequent subjects that come up for discussion or debate in the House.  Such a book could have been made recommended reading for our MPs with some incentive offered to encourage them to study and understand the contents.  This is not an exercise in sarcasm, which is generally considered to be the lowest form of humour, but a desperate effort to find a way out of the current mess.

Defenders of our insufficiently schooled politicians are known to argue that Prime Minister D.S.Senanayake had only completed Year 7 of his studies.  However, they do so without making any allowance for the superior quality of the Year 7 schooling of DSS’s era as compared to its present equivalent as well as the fact that he had the support of a high-powered cabinet of well-qualified and experienced men.  The aforesaid defenders also neglect to take into account the enormous changes that have occurred between the time Senanayake became Prime Minister and today – namely, the vast expansion in the scope and complexity of the issues that our governments have to deal with as compared to the much simpler national concerns of 60-70 years ago.

By now, Sri Lanka has almost completely run out of uncultivated but cultivable land to enable the authorities to allocate a few hectares each to landless farmers, as was usually done in the old days, to help increase food production to cater to its growing population.  Our cheap hydroelectric power sources have been almost fully exploited and we now rely hugely on coal and oil imports to help bridge the gap between power production and power consumption.  Alternative energy sources have, therefore, to be exploited wherever conditions are favourable.  The high rate of population growth has put unprecedented and unrelenting pressure on the housing, education, health and transport sectors.  There are previously un-encountered issues relating to nuclear power, global warming, space exploitation, terrorism, violent religious extremism, telecommunications, genetic engineering, computerisation, environmental pollution, solid waste disposal, gender discrimination and a hundred others that would clearly tax the intellectual and professional capabilities of even the best-qualified MPs.  It is self-evident that national problems that have to be faced currently are immeasurably more difficult to resolve than those that the Parliaments of six or seven decades ago had to face.  Hence, it is imperative that Sri Lanka should work out a methodology to ensure that, at least in the years to come, candidates for election as MPs would be sufficiently intelligent and academically disciplined so as to be in a position to contribute discriminating, scientific and pragmatic inputs to discussions and debates.

Patently, every MP cannot be well-informed on every subject that is discussed in Parliament.  Therefore, the major political parties should ideally divide their total strength in Parliament in such a way that, on any matter that comes up before the House, there will be at least four MPs from each of the major parties who would have enough knowledge to contribute in depth to the debate.  Taking all the parties in Parliament, there would then be a fair chance that there would be at least ten MPs who would be capable of grasping the import of whatever reports are received by Parliament from experts in the Ministries and outside, and who would be able to talk discriminatingly and constructively about whatever bill or other document is under discussion.

In addition to the above proposal being adopted, steps should be taken well before any important issue is to be debated in Parliament to get a reputed, independent research institution to prepare, say, a 10 to 20-page “executive summary” explaining, in simple language, the pros and cons pertaining to that issue.  Such a measure would go a long way to help all our MPs – especially the less mentally tutored ones – to grasp at least the basics  of the matters on which they would be required to vote on behalf of the people.  Such executive summaries would be almost certainly be greatly appreciated by the general public as well, if our newspapers could be strongly persuaded by the authorities to contribute sufficient space to publish them.

Dr A.C.Visvalingam
President, CIMOGG
email:  acvisva@gmail.com

Mar 30

Towards the end of its war to establish an independent state, the Liberation Tigers of Tamil Eelam (LTTE) did not allow civilians to move out of those areas from which it was attacking the Sri Lanka Army.  It has been accused of deploying these hapless fellow citizens as human shields so as to discourage the security forces from firing in their direction or dropping bombs in their vicinity.  The LTTE took advantage of the fact that the government was bound by its inherent obligations to its own people and in line with international humanitarian law.  The net effect was that the LTTE treated the lives of the residents of the North as an expendable commodity in the prosecution of its political and military aims.

The ISIS has been doing something similar, but even worse, particularly in the city of Mosul in Iraq.  It has effectively compelled the residents of Mosul not to move out of their homes and has then booby-trapped nearby static structures and vehicles of every kind.  If a bomb or gunfire from the government side hits one of these booby-trapped locations, the explosives installed by ISIS blow up and multiply the devastation caused by the incoming missile. The ISIS, like the LTTE, is playing fast and loose with the lives and limbs of defenceless men, women and children in its determination to resist the advance of state troops.

Whenever the Government Medical Officers’ Association (GMOA) calls upon its members to strike, the painful reality is that it is the poorest sections of our society who are subjected to inhuman hardship.  Anyone who has seen (on TV) the impotent resignation on the faces and in the words of those suffering patients who had had to travel long distances, in pain, after waking themselves up during the darkest hours before dawn, and spending for their travel from the meagre resources available to them, cannot but fail to be disgusted by the heartless members of the GMOA, who think nothing of depriving these desperate fellow citizens of the medical care which is owed to them in terms of the Hippocratic oath, ordinary humanity and the deep debt that these professionally-qualified ingrates owe to the public of Sri Lanka for having given them free education from the age of 5-6 years until they graduated and completed their training.

What is the significant moral difference, if any, between the LTTE and the ISIS getting civilians killed in furthering the objective of their vicious and inhuman “struggles” and doctors blackmailing the government by using poor, sick citizens as helpless pawns in their dispute with the authorities.  How many of these citizens suffer irreparable medical damage or even die is a statistic that the GMOA is hardly likely to publish.  Whatever merit there may be in the GMOA’s position on private medical education, it does not justify their callousness and cruelty to the very public, even the poorest of whom have paid indirect taxes all their life to educate our youth and our professionals, including doctors.  The public are not so naive as to be fooled by the GMOA’s assertions and justifications about how conscientiously it is looking after the interests of the people of Sri Lanka by its efforts to maintain high medical standards, forgetting that internationally our universities with medical faculties rank between 2100 or so and 9900 and the GMOA does not worry at all about this.  Indeed, it has been reported that one or two of our medical faculties employ veterinarians to teach human medicine on account, presumably, of the unwillingness of our medical heroes to go to the outstations to help improve the teaching at our poorer medical facilities.

It is totally unconscionable of the GMOA to use sick members of the public as pawns in the dispute that it has with the government regarding the South Asian Institute of Technology (SAITM) and other potential private medical teaching establishments.  Doctors are regarded as persons with a high IQ and social sense.  Hence, Sri Lankan doctors are treated by the people with a reverence that is greatly misplaced.  It is surely worse than immoral for persons of this quality and standing to resort to what amounts to thuggery and blackmail in their dealings with the three arms of government.

Moreover, with the active encouragement of the GMOA, hundreds of students from our state universities have been wantonly squandering the precious resources that members of the public, including their own parents, have contributed to the coffers of the government to provide every kind of infrastructure, laboratories, equipment, libraries, teachers, ancillary staff, financial assistance and much more for their education.  Instead of attending lectures, they are spending their time marching, shouting, causing damage to public property, physically attacking law-enforcement personnel and, not least of all, disrupting the lives of thousands of members of the public by recklessly and selfishly hindering people from going to work, to schools, to hospitals and to wherever else that citizens have a right and need to go.  Currently, members of the GMOA can hardly be regarded as worthy exemplars for medical students to follow to become competent, responsible and humane professionals who would become entitled to be shown the regard in which the public now holds doctors.

The members of the GMOA insincerely and sanctimoniously assert that it is their great concern for the welfare of the sick that compels them to oppose the establishment of privately-run, profit-making medical teaching institutions.  They remain deliberately blind to the fact that the government cannot find enough money even to run efficiently some of the existing poorer universities in the public sector, let alone build more universities to meet the demand for more doctors.  They conveniently ignore the fact that the first private medical teaching institution, SAITM, was established with the blessings of the government and the University Grants Council without objection by members of the GMOA, obviously owing to their dread of President Mahinda Rajapkasha and Secretary of Defence Gothabaya Rajapaksha, who also established a medical faculty at the Kotelawala Defence University.  The medical students at state universities, who are so brave now, also remained prudently silent at the time.  It is only after 8 January 2015 that members of the GMOA and medical students appear to have re-discovered their backbones vis-a-vis the government but not the powerful secret groups whose orders they dare not disobey.

If the numbers of doctors were to increase as a consequence of private medical colleges proliferating, the earnings of doctors with their feet in both sectors may tend to diminish a little.  The public believes that it is principally to keep doctors’ earnings high that the GMOA does not like to encourage private medical education.  Claiming to be highly conscious of their duty to serve the public, they stipulate that anyone is free to run private medical courses providing they do it for free!  Would anyone with a modicum of common sense come up with such a hare-brained concept?  Would members of the GMOA, even though they were educated solely at public expense, consider giving their services free to the public instead of charging unconscionable fees when they moonlight in private sector hospitals?  How do they manage to be so absurd as to insist that investors spend their own money, without any return, to train doctors?  Our position is that Sri Lanka needs more doctors.  However, the demand for training more and more doctors will level off after two or three private universities churn out enough doctors to meet the national demand.  Government regulation of all aspects of the functioning of private medical education institutions is, of course, a must but it should not be done in such a manner as to destroy these institutions.

If it is acceptable for other professionals to pay for private education, what are the grounds on which doctors want to be treated as a super-class of professionals?  We are told by them that the reason why they require to be treated as belonging to a superior calling is because it is only their profession which deals with life and death decisions and this entitles them to special consideration.  What an utter load of rubbish this is!

Doctors are not the only professionals who deal with safeguarding people from death or unjury.  Most engineers, expecially those whose work involves interfacing with natural objects like bad soil, floods, earthquakes and so on, cannot rely on book-learned formulas to construct safe buildings, bridges, dams, roads, railway tracks and so on, where a design or construction error could cause the loss of dozens, scores, hundreds or even thousands of lives.  They cannot bury their mistakes like doctors inevitably do.  What about policemen, soldiers, nurses?  Do they not take a multitude of risks to protect the public?

Repeated many times, “Physician, heal thyself!” sums up what needs to be done.

Dr A.C.Visvalingam
President, CIMOGG
email:  acvisva@gmail.com

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 

Dec 30

The contents of the proposed new Constitution are yet to be finalised by Parliament. Nevertheless, many key safeguards will not be included in it because our politicians, barring a few exceptions, would find such provisions inimical to their all-consuming self-interest. It would take up too much space to go into the many desirable ingredients that are likely to be missing from the draft Constitution that is expected to emerge from Parliament sometime in 2017. So, we shall refer here to just two of them. 

Selection of Candidates to Contest Elections - The Citizens’ Movement for Good Governance (CIMOGG) has repeatedly pointed out that the selection of candidates to contest elections has always been in the hands of a small oligarchy within each political party, which will sponsor only those candidates who will (a) pledge unquestioning loyalty to the leader of the oligarchy, (b) be able to press the claims of their family or party connections, (c) guarantee an abundant supply of money for election expenses, (d) have recourse to the services of bands of loyal supporters who would not hesitate to overstep legal and social boundaries during election campaigns, (e) not let their conscience get in the way when wasting or stealing public funds, and (f) possess slick eloquence in dealing with the public. On the other hand, a good academic or professional qualification, a fair acquaintance with the law and economics, a crime-free past, self-discipline and the willingness to commit more time to the needs of their elected office than to their own affairs are qualifications to which an oligarchy will not give much weight except in the case of a few individuals whose inputs would be essential to help confront well-informed critics.

Voters would be deluding themselves if they believe that it is they who choose and elect their representatives whereas the truth is that they would have to vote almost exclusively for candidates who have been pre-qualified, mostly for the wrong reasons, by the party oligarchies referred to above.

Instead of continuing as in the past, the new Constitution should insist on some basic criteria that would make it difficult for crooks and incompetents to enter the Legislature. Unfortunately, there is no significant prospect that this improvement will be realised because no political party would agree to adopt constitutional changes that undermine its own oligarchy.

Some years ago, CIMOGG recommended that the Elections Commission should get every candidate to fill in a standard form, covering two sides of an A4 sheet, with personal data, and have copies distributed (in the appropriate languages) to all the households in their electorates rather than encourage the squandering of vast resources on posters, stages, TV spots, environment-polluting sound-amplifying equipment, banners, traffic-blocking processions, food, drinks, gratuities and so on. The data sheets should contain at least (a) details of the electorate being contested, (b) full name of the candidate, (c) residential address, (d) contact details of the election office, (e) date of birth, (f) gender, (g) civil status, (h) period of residence in the electorate, (i) name and address of last school attended, (j) last institution of higher learning attended, (k) educational qualifications, (l) professional qualifications, (m) computer skills, (n) present occupation and workplace, (o) brief details of civic and social service activities, (p) brief details of three priorities for action within the electorate, (q) brief details of three priorities for action by Parliament, (r) the candidate’s tax file number, and (s) a declaration that the candidate has not been convicted by a court of law.

Candidates who make false claims in their data sheets would soon be exposed because at least a few voters in their electorates would be acquainted with their real background.

By going through the personal data sheets received by them, voters would be able very quickly to short-list the few candidates who are bound to stand out from the rest. It would now be up to the voters to cast their ballots for one of these short-listed candidates, without being influenced by uncritical attachment to party, race, religion, language, caste or other factors.

The Constitution should empower the Elections Commission to implement a scheme on the above lines and to work with the media to educate the public about the value of this approach to help Sri Lanka get decent, conscientious and competent persons to adorn our Legislature. However, as the majority of MPs in the present Parliament would be hard put to submit even passably satisfactory data sheets, they may be expected to veto the implementation of any new election methodology that would expose their poor bio-data to public scrutiny. Hence, this is one safeguard that we shall not see in the new Constitution.

Separation of Powers - Sovereignty is in the People and cannot be violated or transferred outright. Fundamental rights and the franchise are the two components of sovereignty that the People retain at all times whereas the powers of government would, for practical reasons, be delegated in conformity with the provisions of the Constitution.

In simplified language, the powers of government include (a) the making of laws by the Legislature, (b) the management of all State activities by the Executive, and (c) the exercise of judicial power by the Judiciary. These three functions have to be carried out in accordance with the Constitution and the subsidiary laws passed by the Legislature. Once the relevant laws are in place, the three arms of government – namely, the Legislature, the Executive and the Judiciary – should be obliged to carry out their functions independently with only such interaction as the Constitution stipulates. In other words, a good Constitution must separate the powers and functions of these three entities to the optimal extent so that conflicts of interest are minimised.

J.R.Jayewardena gave Sri Lanka a Constitution that sounds democratic but is, in fact, almost 100% dictatorial. His power over the Executive arm was absolute for all practical purposes by virtue of his position as the Executive President. He also controlled Parliament by his power to appoint or sack Ministers and, less directly, the Judiciary by his power to select, appoint and promote Judges of the Supreme Court. Instead of getting rid of this kind of concentration of power in one person, PM Ranil Wickremasinghe, who is the moving spirit behind the drafting of the new Constitution has, on many occasions, kept insisting that Parliament must be supreme (even above the People?) in terms of the Constitution, presumably so that a future PM would be able to exercise all the powers that Jayewardena exercised as Executive President. The only privilege that would be given up would be Presidential immunity which would not matter to any PM who controls all three arms of government with the aid of a Constitution that subverts the concept of a comprehensive separation of powers.

Parliament should concentrate on passing laws and deciding national priorities. It must get the Executive to implement whatever program of work has been approved but must not itself interfere in executive decision-making. It should tell the Executive “what” it wants but not give directions as to “how” the Executive’s tasks are to be carried out. Parliament shall set up, within the Executive, whatever machinery is required to carry out all tasks and also appoint independent entities to deal with all matters relating to procurement contracts, progress and expenditure monitoring, quality assurance and conformity with Parliament’s requirements. It would be incumbent on the Executive to keep the Legislature regularly informed of progress on all tasks assigned to it. Parliament should have subject-specific sub-committees which shall be empowered to summon senior personnel from the Executive to appear before them and furnish whatever clarifications are sought.

As for the Judiciary, over the years, there have been numerous allegations/revelations in the media about the manner in which Prime Ministers and Executive Presidents have appointed members to the superior grades of the Judiciary and also pressurised them to give judgments that would be favourable to the regime in power. Mr Nagananda Kodituwakku (NK), Attorney-at-Law and courageous socio-political activist, has recently filed complaints with the Permanent Commission to Investigate Allegations of Bribery or Corruption (CIABOC) against five of our Chief Justices accusing them of giving judgments in favour of the Executive President, the Prime Minister or the government of the day. Whether he will be able to penetrate the strong defensive wall that will confront him remains to be seen. Whatever be the outcome of NK’s endeavours, it is crystal clear that the Judiciary is highly vulnerable and should be insulated from political pressures and allowed to function in a much more autonomous and professional manner than over the past seven decades. In particular, Parliament should, in no circumstances, be allowed to exercise judicial functions considering that the background and qualifications required to become an MP, even a good one, are very different from those that are needed to be a judge.

The higher that politicians rise within the Legislature the keener they are to exercise overarching power and control over everybody and everything. Even a nominal concession in the direction of the separation of powers would not be something they would favour.

Consequently, this safeguard will also be unlikely to be included in the new Constitution.

 

 

 

 

 

Nov 25

Most Sri Lankan drivers are conscious of the dangers and hassles of careless driving and generally endeavour to be law-abiding, especially considering the now greatly increased traffic density and police proactivity.  There is great incentive for them to try to drive in such a way as to obviate costly encounters with lawless road users or the guardians of the law.  Consequently, the offences they are likely commit would be mostly of a technical nature, viz. ones that are easy to detect but rarely cause serious problems (like driving a short distance over a white line or exceeding the speed limit marginally).  Unfortunately, the orderly movement of responsible drivers is adversely affected by our poor road conditions as well as the recklessness and socially-irresponsible attitude of a significant proportion of the younger persons who drive three-wheelers or buses, or ride motor-cycles.  Their youthful levels of testosterone induce them to display compulsive competitiveness, aggression and risk-taking with little regard for most road rules.  It is the behaviour of these younger persons – and not the minor transgressions of the much larger number of older drivers – which is the dominant ingredient that leads to the high frequency of road accidents that prevails presently.

At a recent news conference, a Minister supported the imposition of heavy fines on careless drivers by arguing that even heftier fines than those now proposed are levied in, for example, Singapore and Australia.  A little reflection will reveal that this is not by any means a fair comparison.  What he failed to say was that roads in those countries are designed, constructed and maintained properly, well-signposted, well-lit and also equipped with traffic lights that function at all times.  These lights are not turned off by policemen wearing uniforms noted for their poor visibility (especially at night) and giving hand signals that are not always clear.  The differences mentioned here, especially the poor road infrastructure, have a considerable bearing on the propensity for accidents to occur.  Therefore, penalties that may be acceptable elsewhere should not be blindly applied here.  Another important factor that should not be ignored is to relate the scales of fines to the per capita income applicable to Sri Lanka.

A substantial fine may be justified for an offence that has nothing to do with what happens on the roads.  Failure to secure third-party insurance, an emission certificate or the road license are offences which can be dealt with by the imposition of an appropriate fine.  Once these requirements are satisfied and the fines paid, the offender will not have to suffer any further punishments in respect of these failings until the following year, and even then only if he repeats these offences.  To be punished indiscriminately for minor infractions should not be the norm.

The offence of exceeding the speed limit by, say, 5-10km/h on some deserted road (where lots of traffic policemen love to lie in ambush) cannot be equated to the crime of a bus or truck driver who insists on regardlessly weaving right and left whilst overtaking vehicles either within city limits or on winding, narrow roads.  There is often no way to check the speed of vehicles in such restricted conditions.  On the other hand, on several occasions the reporters from at least one local TV station (while going on some unrelated assignment) have taken the opportunity to record digitally examples of extremely dangerous driving and shown them in their news bulletins.  Here, the offending driver may not have been exceeding the speed limit nor overtaking vehicles on the left side but driving like a maniac nevertheless, considering the congested road conditions.  Therefore, instead of doing the easy things like punishing drivers for technical offences, greater ingenuity and effort should be exercised by the police to emulate the aforesaid TV reporters to track and record the more egregious instances of driving that are seen every day everywhere because dangerous driving contributes to far more accidents than technical infractions that are easy to spot.

Considering that breaking road rules constitutes anti-social conduct, it would not be unreasonable to assume that persons who do so would very likely be habitual offenders and would think nothing of bribing traffic policemen in order to avoid being fined heavily or having to hire a lawyer and go through the inconvenience, mental stress and much greater expense of appearing in the traffic courts.  An offender with limited scruples would gladly pay a bribe of, say, 20-30% of the stipulated fine to help obviate the vexatious waste of time involved in surrendering his driving license and recovering it later from the relevant police station.  There is some reason to think that bribe-givers and bribe-takers have a natural tendency to recognise each other for what they are and, hence, it would not be too difficult an exercise for both parties to silence their own consciences.  Offenders would pay up; the policemen involved would pocket the hush-money and refrain from taking any further action.  These transactions are, of course, settled quickly and discreetly.

The heavier the stipulated fine, the greater the takings of the police team involved.  The improper earnings collected by a small team of traffic policemen would amount to a very attractive supplementary income.  An astute commentator has expressed the view that, because the legitimate remuneration of policemen alone cannot be increased without encountering resistance from other state employees, the government has probably devised this convenient way of improving the lot of the former!

Needless to say, police teams would not be free to release every offender by accepting bribes because they would have to penalise a sufficient number of road users to satisfy their superiors that the law is being fully put into effect.  By letting the experienced traffic offender cum bribe-giver escape, traffic police will find themselves obliged to apprehend a larger number of minor transgressors from among generally law-abiding groups of drivers and charge them for less serious violations.

A suggestion that we should like to make is for the police to secure a relatively small number of unmarked cars and vans, fitted with disguised digital cameras and recorders.  These vehicles should move around and follow the many offenders who are bound to overtake them recklessly.  As in advanced countries, digital recordings made on such occasions should be made legally admissible as irrefutable proof of the manner in which the vehicles being monitored were being driven.  The owners/drivers of the said vehicles should be obliged to furnish all relevant details of the person at the wheel of the hazardously-driven vehicle and arrange to submit all documents called for – driving license, vehicle registration sheet, emission test certificate, road license, insurance certificate etc at the nearest Grade 1 police station and have the details entered into a central data bank.  The penalty imposed on the owner and/or the driver should be made sharper with each infringement.

In short, it would be better to treat generally well-behaved drivers leniently without subjecting them to vicious fines but to get much tougher with those identified by CCTV tracking as Highway Code violators because the majority of serious accidents are caused by the latter.

Finally, we need to ask the authorities whether a traffic violation by a VIP or his minions will be exempt from conforming to the Highway Code, especially with respect to “pushing” other vehicles out of the way, exceeding speed limits, or getting traffic police to override the rights of other road users, especially at road intersections.

As an unavoidable duty, we are obliged to state that it is extremely unsatisfactory in principle for a government to consider the collection of fines and penalties as a respectable or constructive source of income in balancing budgets.  The correct approach in the preparation of national budgets should be to provide incentives for citizens to become more productive and simultaneously improve the efficiency and coverage of tax collection, which is absurdly low at present.  When one sees how much is being invested by individuals in business ventures, buying real estate, constructing houses, owning a multiplicity of vehicles, constantly partying at 5-star hotels, spending millions on weddings (apart from dowries) etc, there is every reason to conclude that the Department of Inland Revenue (DIR) is not carrying out the its investigations with anything like the commitment required.  The cooperation of the DIR must be constructively secured by the government so that tax collecting work is carried out more conscientiously so that fines imposed for road violations would not have to be relied upon to reduce budgetary shortfalls.