Kishali Pinto Jayawardene
As furious competition for votes in the forthcoming local government elections reaches fever-pitch, hostility (real or contrived as the case may be) between the bedraggled actors that strut on Sri Lanka’s political stage has become positively noxious.
Braggadocio and shifty evasion
We may look in vain for inspiring policy driven speeches of the past or at the very least, for an honest owning up to mistakes made and genuine contrition therein. Instead, what we have is braggadocio and shifty evasion quite apart from the most disgraceful of language being used on political platforms. Can citizens who are so disgusted that they may abstain from voting in the February 10th elections be blamed?
Certainly it is not the best of circumstances in which to celebrate Independence Day. This charade betrays the ugly truth of what Sri Lanka has been reduced to, decades after independence from colonial rule, despite an all too fleeting glimpse of hope in 2015. The contradictions and the hypocrisies not only by politicians but also by others take one’s breath away.
Members of the Buddhist clergy appear in support of one political party or another and talk of ‘culture’, shuddering in horror at an admittedly ill-timed effort by the Ministry of Finance to withdraw an ancient excise notification prohibiting women from buying alcohol within the premises of a tavern but allow the most violent of abuses to take place against women and children in this country without scarcely a whisper. Female candidates are now given a quota in the hustings but election monitors have warned of hate speech practiced against them in particular areas.
The Constitution and discriminatory regulations
In last week’s column, I referred to the fact that President Maithripala Sirisena’s ‘withdrawal of the withdrawal’ of that gazette notification was prompted by a disdain for what may be termed as liberal niceties, given that he has declared war to all intents and purposes on his coalition partner, the United National Party and withdrawn to his familiar constituencies of support. But the larger question here for the President and his advisors who supported such precipitate action is the role of the law and the Constitution in this regard. While the matter is before the Supreme Court and remains to be decided, it may usefully be observed that the Court itself is no stranger to such discriminatory rules, regulations and notifications being challenged before it.
Writing almost twenty years ago in these column spaces (Challenging Gender Bias in Sri Lanka, Focus on Rights, 30th May 1999), I discussed the Supreme Court’s striking down in that month of a secret discriminatory policy regarding the granting of residence visas in Sri Lanka. The Controller of Immigration and Emigration had, in a constitutional challenge to his refusal to grant a residence visa to a German male national married to a Sri Lankan female citizen in the Court, pleaded that that ‘Sri Lanka follows a patriarchal system; hence Residence Visas are normally granted only to female spouses of Sri Lankans”. Those guidelines were stamped “Secret- for official use only.”
That defence was summarily and justifiably dismissed by the Court. Immigration rules were directed to be revised to ensure gender equality. This is judicial thinking that ought to be taken into account by politicians and policy makers. It is a sad reflection that with all the time that has passed between then and now, we still have to contend with such anachronistic notions and debate these issues.
Tensions and tangible benefits
Despite nonsensical tangos embodying cultural and societal hypocrisies that are performed before us by politicians, there is a tangible benefit emerging out of the (apparently disagreeable) tensions between the major political parties that need to be marked. For better or for worse, President Maithripala Sirisena’s tirades against corruptors on both sides of, taken together with the reports of the two Commissions respectively on the Central Bank Bond Issuance in the time of the current Government and the numerous grave frauds that were committed during the Rajapaksa Presidency, appear to have (somewhat) shaken the political establishment.
This is however an observation that is made with some trepidation. Full foreknowledge of the deviousness of our politicians means that concrete results emerging from these battles of blaming each other across the political divide yet remains to be tested.
The second Commission report details extraordinary instances of alleged corruption on the part of the Rajapaksas and their acolytes, ranging from the forcible acquisition of vast tracts of private lands to the misappropriation of public funds allocated for the Negombo Lagoon Development Project. The notorious Avant Garde case with a specific focus on depriving a considerable income to the Navy by handing over the floating armory project to Avant Garde and not issuing permits under the Firearms Ordinance to the weapons possessed by the company has received particular attention.
Accountability for politicians and parties
Some welcome developments are evidenced. The Cabinet has approved the amendment of the Bribery Act in order that corruption cases will be heard by a three-bench trial-at-bar in the High Court. A proposal to amend the Commissions of Inquiry Act (1948) to vest the Bribery and Corruption Commission with the same powers given to the Attorney General by the Amendment Act of 2008 to institute criminal proceedings in respect of any offence based on material collected in the course of an investigation or inquiry or both an investigation and inquiry before a Commission of Inquiry is also a positive step.
Equally so, law reform must oblige political parties to maintain regular accounts clearly and fully recording therein all amounts received by them and all expenditure incurred as is, for example, the requirement in Germany. This was, in fact, a major proposal put forward by the Law Commission of India, when considering reform of India’s electoral laws. (Law Commission of India, One Hundred Seventieth Report on Reform of the Election Laws, May 1999)
The Law Commission recommended that the audited accounts be submitted to the Elections Commission before the prescribed date every year with the Commission being required in its turn to publish the said accounts for public information. The Commission reasoned that it was important to introduce an element of transparency and openness in the financial matters of political parties, being backed in this regard by a powerful judgment of the Supreme Court in Gajanan Bapat v Dattaji Meghe (1995, SCC, 347). Law reforms in Sri Lanka must ensure that actions of commission and omission covered by offences, corrupt and illegal practices of individuals acting as agents of parties should result to the discredit of such parties rather than only to the individuals. Parties themselves should be made to suffer severe penalties.
Thoughts to remember
Corruption, one might say, is as old as politics itself in Sri Lanka. So indeed is disregard for the Constitution and the law by those in power. Since independence, breathtakingly ingenious ways have been employed to twist the constitutional document of the day to suit political or even personal agendas.
But, as we may recall, what distinguished the Rajapaksa Presidency was not the pure occurrence of fraud and corruption. It was not that Rajapakse siblings, in-laws, sons and daughters, nephews and nieces, cousins and relatives, perchance twenty times removed from the seat of Presidential power, were placed at different levels of political or financial power. It was not even the fact of mismanagement and outright swindling that was the only question. Rather, what was fundamentally disturbing, (as much as the fact of such corruption), was the supremely arrogant manner of its occurrence. Not even unconvincing explanations were offered when those in power were called to account for monumental losses suffered by state institutions.
Indisputably that level of arrogance and imperviousness to the Rule of Law cannot be allowed to return.