Groping in the dark for 55 years

By the age of 55 a person should have reached the peak of his or her career. The development of a nation takes somewhat longer. Nevertheless, a nation that has completed 55 years of existence might at least be expected to have settled its basic law in the form of a constitution and achieved a measure of social and political consensus about its fundamental principles and policies.

However, Sri Lanka’s Constitution which is thirty years younger than Independence has been amended seventeen times. The first sixteen changes were at the behest of a single political party. All laws "written and unwritten" that were in force before the enactment of the Constitution are expressly kept alive even if they are inconsistent with "fundamental rights".

Moral contradictions are found elsewhere too. In most countries a cessation of hostilities after a long period of war tends to herald a return to respect for human rights and democratic values. In Sri Lanka the "peace process" and respect for human rights are seen as inimical to each other, and too much insistence on the latter is believed to jeopardize the former.

A confused value system is also evident when we allow our elected representatives to import luxury vehicles every few years while allowing our railway system to deteriorate to the point where all trains are presently restricted to a speed of 35 mph due to unsafe tracks. It appears to be easier to secure the release of state funds to purchase new vehicles for those who already have old ones than it is to get funds to purchase vital equipment for hospitals that have none.

A flawed decision-making process is visible at many levels, nowhere more so than in the energy sector. Despite the nation facing repeated power shortages, protesters have been allowed to halt all forms of regulated power plants in fixed places, so that we can instead have unregulated diesel plants sending noise and fumes into everybody’s back garden. In the process, the energy crisis has also demonstrated that inconsistencies and double standards are not the sole prerogative of State bodies.

Another example of the questionable stand of some NGOs is the local election monitoring groups that had been swift and outspoken in their criticism of election violence during the local, provincial, presidential and general elections that were held from 1997 to 2000. These groups became strangely silent after the parliamentary government changed in 2001. They made little effort to publicize their reports of the local government elections that followed, despite privately admitting that a considerable level of violence had occurred and that the Police had simply "switched allegiance" without actually mending their ways.

In this looking-glass world that is modern Sri Lanka, let us examine key features of the legal framework.

At the outset it must be said that good laws alone cannot guarantee good governance. Nevertheless, a bad system of law can facilitate bad governance. In this context it is noteworthy that this country pays its parliamentarians a state pension after five years, when the elected term of Parliament is six years. Thus a member does not need to perform well enough to be re-elected even once.

The fact that many notorious individuals who have been found guilty of fundamental rights violations, or are facing serious criminal charges, are able to get elected is another indictment on the system. Our election laws take no cognizance of the findings of the Supreme Court in regard to fundamental rights. The criminal justice system can be slowed to a crawl to enable those with charges pending against them to serve out their elected tern before the court gets anywhere near a final verdict, and election petition cases are no better.

The fight against bribery and corruption is a national joke. Public squabbling and questionable conduct on the part of the Commissioners themselves have seriously dented the credibility of the Commission for the Prevention of Bribery and Corruption, perhaps irrevocably.

Meanwhile, as highlighted in this column two weeks ago, an opinion poll published by the Marga Institute demonstrated a notable lack of confidence in the legal system even by those who work within it.

A prominent foreign observer is said to have remarked recently that Sri Lanka has dozens of laws but none of them are enforced. One reason that can be attributed for this is that few of our recent laws are value-based. Even the "fundamental rights" set out in the Constitution are not really so fundamental, for reasons already set out above. There is also little regard paid to the context in which the law has to operate, which means that enforceability is not considered. Indeed departments that are publicly perceived to have failed in their duty (such as the Police) are quick to ask for new laws, as if the old laws are an excuse for non- performance.

Another recent trend is for laws to be drafted in haste and secrecy. The "White Paper" is a thing of the past; policy documents are seldom put up for public discussion. Even draft Bills are difficult to obtain prior to being gazetted. Thus large sections of knowledgeable, articulate and socially conscious citizens are left inarticulate in the process of governance.

Ironically even the proposed Freedom of Information Act that is said to have been accepted by the Government at the instance of the media, has not so far been put up for public discussion. Its proponents are evidently ignorant of the fact that freedom of information is supposed to be primarily for the benefit of the public, and not merely to enhance the circulation of newspapers.

Fortunately post-constitution legislation can be challenged in the Supreme Court, and public vigilance has resulted in a number of clauses in recent Bills being struck down for inconsistency with the Constitution.

However even this task can be made difficult for the citizen. If the President certifies that a Bill is "urgent in the national interest" the period for judicial review can be reduced to twenty-four hours. Fortunately for the public, political differences between the President and the party that wields power in Parliament are said to have resulted in a moratorium on this power being invoked.

Against this background, the Seventeenth Amendment to the Constitution was a radical attempt to improve the quality of governance by taking certain key functions out of the hands of politicians. Its main features are sufficiently well known not to require repetition. Its twin purposes were to ensure that key appointments in areas such as the judiciary, law enforcement, corruption control and public administration would be made without political bias, and to establish or enhance the independence of the police, the public service and the elections department.

It is not a solution to all the problems that bad governance has engendered, but it represents an attempt to re-instill certain values and standards of public integrity into national life.

A challenge for the Police Commission

The strange saga of ASP Kulasiri Udugampola and the Athurugiriya safe house has ended with the Attorney-General directing the Inspector-General of Police to withdraw the case filed by Udugampola against the Army Commander, the Director of Military Intelligence and members of the Army’s "Long Range Reconnaissance Patrol".

According to uncontradicted news reports, the case had been filed by Udugampola on his own initiative, without reference to the Attorney-General or the IGP, after he had apparently found a cache of high explosive material at the house used by the soldiers. It transpired that the safe house had been used by these personnel with the full knowledge and authority of their superiors, and that the LRRP was a secret and highly effective unit that had been engaged in deep penetration operations against the LTTE at the time that the war was going on. Udugampola’s raid resulted in the identities of the LRRP members being disclosed and their lives being placed in danger from LTTE revenge attacks.

The question is, what disciplinary proceedings if any are to be instituted against this officer for what turns out to have been a totally unjustified and insubordinate action. Observers note that an ASP would hardly have dared to file plaint against the Army Commander without the sanction of his superiors, unless he enjoyed protection from a source higher than that of the Army Commander. Allowing such officers to continue with impunity has grave consequences for the Police force and the public.

If the newly appointed National Police Commission and the Inspector-General of Police (whose appointment was recommended by the Constitutional Council) are serious about taking politics out of the Police, they will have to tackle the Udugampola issue no matter whom it may displease.