Complying with the request to draft a paper on the state of health in the country in terms of governance has left the author in a state of depression. There is indeed nothing positive to write of in terms of governance in the country, but forces the author to the conclusion that the state of health of the country in terms of governance in appalling.
Governance is seen as the exercise of economical, political and administrative authority to manage a countries affairs at all levels. It comprises the mechanisms, processes and institutions through which citizens and groups articulate their interests, exercise their legal rights, meet their obligations and meditate their differences.1
Governance embraces all of the methods-good and bad-that societies use to distribute power and manage public resources and problems. Good governance then, is a process whereby public resources and problems are managed effectively, efficiently and in response to critical needs of society. Recently good governance has become recognised as a cornerstone of what is termed as human development2 and as such a primary means of alleviating poverty and promoting the welfare of society.
Government does not only imply government functions, it is also the manner in which society governs itself. In this respect society institutions such as non-governmental organisations, research institutions, the judiciary, trade unions, business associations and religious organizations play a vital and significant role.
The workings of Government3- The lack of political will, financial resources and the managerial capabilities of the government are often cited as reasons for the failure to enact its agenda for reform, give effect to statutes and ensure the the efficient functioning of new and exiting institutions.
A number of institutions reflect this. The Permanent Commission on Bribery and Corruption which the Government is now attempting to re-constitute, the Human Rights Commission and the Office of the Ombudsman are some examples of agencies directly related to governance. To this could be added the public Enterprises Reform Commission - the body set up by the Government to handle privatization of public institutions - and the Southern Development Authority established to rejuvenate the southern region of Sri Lanka. Institutions of the latter category have come in for considerable criticism for lack of transparencyin their operation, strtegic vision and inefficient management of resources. There have also been turf battles between institutions indicating that shortcomings in control, communication and co-ordination systems within Governments are integral to the problems of governance.
The absence of political will exemplified by the failure to provide adequate resources and constant political interferences in the workings of the oversight institutions, compounds managerial inadequacies to the point of institutional paralysis. The lack of transparency and accountability, persistance of corruption, administrative inertia and inefficiency coupled with no progress on the conflict resolution and constitutional reform fronts. Make up for a general perception of disappointment and stalemate
It also provokes the accusation that the Government is only interested in a major public relations exercise locally and internationally to demonstrate its commitment to democracy, human rights and good governance. There is no follow-up to the passage of laudable legislation and the establishment of institutions ostensibly with teeth and clout, because such action is never really intended in the first place.
The gap between Government intention and Government action draws attention to the structure of decision-making fostered by the executive presidency. The concentration of powers in a single office reinforces the hierarchical nature of decision making and invests the office with an air of omnipotence.
Moreover, there have been a series of Presidential Task Forces created to propose reforms in a number of areas ranging from education to health and child protection. The Southern Development Authority for instance, comes directly under the President. Provincial and local inputs into its establishment and in designing its mandate have been non-existent.
Given below are a few examples of areas in which good governance is compromised.
The Permanent Commission to Investigate Allegations on Bribery and Corruption
The permanent Commission to Investigate Allegations on Bribery and Corruption was the first item of legislation introduced by the present Government when it came in to power in 1994. With the introduction of this Commission the Government made a grand promise that they would eradicate bribery and corruption whichplagued the country during the previous regime. Under this Act a three member commission was instituted. The bribery(amendment) Act which was passed concurrently introduced further changes to the law where the offense of corruption was introduced with stringent penalties prescribed, therefore exemplifying the governments commitment to ensure cleanness and probity in the public life of the nation. The offence of corruption was widely defined with the intent of filling a lacuna in the body of Sri Lankan law which would enable investigation and prosecution of a number of incidents of corruption hitherto beyond the reach of the law. Intentions were no doubt good, but today the Commission to Investigate Bribery and Corruption lies defunct and as an impotent as the previous bribery commission is replaced. The Government alleges that the Commission failed to investigate and cause the successful procecution of even a single case involving a n instance of corruption from the date of establishment of the Commission to the present and this, the Government alleged was despite expenditure of approximately Rs. 115 million of public funds to finance the activities of the Commission, thereby providing is incapable of discharging its functions efficiently. Negligence, misconduct and illegal conduct on the part of the Commissioners for collateral purposes are some other accusations brought on the Commission. The Government thereby endeavoured to reconstitute the Commission.
However this is only one side of the story. Of the three Commissioners elected one soon resigned over his disappointment on the Governments reaction to a Commission report of an investigation on the Bang of Ceylon. Though he was replaced the Commission was back to two members with the demise of one of the Commission and no replacement was made thereafter. The Bribery Commissioners and the Secretary General were at loggerheads following the Commissioners launching investigations on the activities of the Director General and her husband. The President intervened at this juncture and wanted the commissioner to resign. However the Commissioners refused to resign and said that this was a travesty of justice and issued statements accusing the Government deliberate attempts to stifle the smooth functioning of the Commission. The Commission in one statement says that whereas initially there were 84 police officers attached to the Commission that they have been gradually withdrawn. In further alleges that at present the Commission does not have the services of even one single policeman.
Speculation is rampant, opinions differ as to the truth of the issue, whether the Commissioners are in fact inefficient or as the majority public opinion shows is it that the Government is unhappy the Commission is investigating in to transactions which it wishes to cover up? In June 1998 following 80 Government MP's moving a resolution calling for the removal of the Commissioners, a parliamentary select committee was appointed to investigate in to the actions of the Commissioners.
What is tragic is that for nearly two years the Commission has not functioned effectively. The lack of transparency and accountability on the part of the parties concerned leaves thecore issues unaddressed and the parties deadlocked over the reconstitution of the Commission. This is yet another blow to attempts of governance, leaving the high expectations of the country for a clean public service a mere dream…
The Human Rights Task (HRTF) and Human Rights Commission
The HRTF was created under emergency regulations and had been in existance for a period of about eight year. It was charged with monitoring the welfare of detainees. The abolition by emergency regulation of the HRTF at the end of June 1998 had drastic practical repercussions on the fate of the persons arrested and held under special legislation. Special laws relating to arrest and detention such as existing under the Prevention of Terrorism act (PTA) and the emergency regulations need at least a minimum form of safeguards. Such as certain safeguards against abuse and mechanisms by which they can be monitored. Many of such legal safeguards and the only effective monitoring mechanism at the time of its dismantling were provided by the HRTF. For example it was under these provisions that a person making an arrest was required to identify by himself by name and rank to the person being arrested or any relative upon inquiry, and a person arrested had to be allowed reasonable means of communicating with a friend or relative and in the case of a person arrested being a woman or child under 12 years a person of their choice to be allowed to accompany them. In addition to these nine regional HRTF offices had been set up, in addition to the Colombo Head Office , and that the HRTF had employeed a staff of over 80people. The services of the HRTF further included investigating complaints of disappearances and abductions by security forces, maintaining round the clock facility for recording complains at Head Office and at most regional centres to name a few of such services extended by HRTF. The rescinding of the emergency regulations creating the HRTF dismantled this specialised service practically overnight, threatening loss of expertise and experience which have been gained over the years. It left a definite void in the mechanisms available for the protection of life liberty and security of the people.
It is true that the functions discharged by the HRTF were written into the Act establishment the Human Rights Commission. However at the time the HRTF was terminated the Commission had not yet become properly operative and not established institutional capacity to undertake this work. Further the commission had a host of other substantive responsibilities in the form of promoting fundamental rights and seeking resolution by conciliation and resolution, advising and assisting Government in formulating legislation and administrative procedures in furtherance of the protection and promotion of fundamental rights etc. Instead of being able to concentrate on how best to carry out this mammoth responsibility the Commission was compelled to take on the one complicated and specialist task that was already being reasonably performed by an experienced existing body. The reasons for this change of procedure remains a mystery today.
Independent human rights bodies whilst recognizing the deficiencies of the HRTF described the prospect of the abolition of the HRFT as "appalling". It is also disturbing to note that the extent to which Human Rights Commission had succeeded in filling the gap caused by the untimely disappearance of the HRTF is to date not clear. The role of the Human Rights Commission is dubious and in the opinion of some analysts yet another disastrous result of poor governance.
The public enterprise Reforms Commission (PERC)
The Privatisation of the national carrier Air Lanka was carried out by the Public Enterprise Reforms Commission (PERC). That this transaction was done in quite a questionable and strange manner and with total disregard to Government policy framework, which proclaimed in Parliament to uphold transparency and accountability with regard to all its transactions. Neither the PA Government nor PERC were able to explain as to why such an important privatisation transaction of the country's national carrier enjoying international rights and privileges had been carried out in such a hasty manner, shrouded in secrecy and apparently causing embarrassment and concern even to the Board of Directors of Air Lanka. The most baffling was the that in the course of doing this the Chairman and the Director-General of PERC were caught red handed laying to the Committee for public enterprises (COPE) which is a duly appointed committee of the house. COPE questioned the Public Enterprise Reforms Commission on the true position of the Air Lanka privatisation negotiations and were told that negotiations were still proceeding and the deal was not yet finalised, when in fact it was later proved that the Commission deliberately lied and misled COPE. The crookedness of this deal was further confounded when the then Chairman of Air Lanka went public saying that the board of directors including himself had seen the agreement only two hours prior to the signing of the agreement. The public concern in this regard was that if the Air Lanka privatisation deal was so meticulously carvedout to obtian maximum benefit to the national carrier why was there so such mystery and secrecy and a lack of transparency in carrying out this deal.
Elections - The country having recently witnessed a Provincial Council Election marred with violence of unprecedented proportions and a few days away from the certainty of a repetition of the same in the form of five more Provincial Council Elections, it is opportune to highlight the electoral system in the country.
The two main ruling parties over the last three decades demonstrated a callous disregard for the integrity of the electoral process and thereby eroded public confidence in the basic mechanism of choice and change.
Of the chain of events relating to elections that transpired in the country during the last few months, the postponement of elections is probably the most deplorable.
Five Provincial Councils stood dissolved by reason of the expiry of their term of office in terms of the Constitution.
Nominations were called for fresh elections in terms of the Provincial Councils Elections Act, and at the end of the nominations period, were published fixing the poll for 28th August 1998 in all five provinces.
On 4th August the State of Emergency which had been in force in some areas was extended island wide by Presidential Proclamation under the Public Security Ordinance. The President thereupon made the following Emergency Regulation.
In short what was done was to proclaim a State of Emergency throughout Sir Lanka and thereafter to make an Emergency Regulation suspending the Elections Commissioner's notice fixing the date of poll for five Provincial Councils.
Normally, postponement of elections would require a constitutional amendment, but the President chose to circumnavigate this by proclaiming a State of Emergency.
The reason given by the Government for the postponement of the Elections was that such postponement was necessitated due to logistical difficulties with regard to provision of security for election related activity due to the ongoing North Eastern war.
In a note issued to all Government Parliamentarians at the occasion of the Emergency debate in terms of the Public Security Ordinance, the President stated that the declaration of an island wide Emergency was because of several disruptive acts reported form several areas outside the main area of conflict. These included attacks on electricity transformers, telephone transmission towers, several incidents reported from the Central Province and threats to banking and financial institutions.
The note also stated that "in view of the wholehearted commitment of security forces in the north and east, resources available to the government to stem disruptive and terrorist acts in the south are restricted. An all-encompassing 'blanket' security cover therefore is necessary for the government to respond effectively to such acts outside the north and the east." It further stated that given the serious situation that existed, if the government was to conduct elections disregarding legitimate security concerns, a serious consequence would be that political leaders of both the opposition and government would be placed in a vulnerable position participating in campaign meetings without adequate security.
Notwithstanding the above, the declaration of an island wide State of Emergency, and the postponement of the Provincial Councils Election by the Government came under severe criticism in many forums.
Political Parties held protest campaigns in Colombo and outstations. In their opinion, the government decision to postpone elections was a clear indication of the undemocratic policies of government. It was felt that the emergency regulations had been misused by the government for partisan political reasons.
Several political parties, civil society movements and private individuals petitioned Court challenging the Government decision to postpone elections.
On the 27 of January 1999 the Supreme Court delivered Judgement on the case filed by the Free Media Movement (Karunatilaka v. Disssanayaka and others. SC. App. No. 509/98)
The twenty one page judgement upheld the challenge brought by journalists Varuna Karunatilaka and Sunanda Deshapriya against the Commissioner of Elections on the postponement of Elections to five Provincials. The judgement contained a severe indictment on the Elections Commissioner for failing to live to the independent role assigned to him by the constitution.
The position of the Elections Commissioner was that when confronted by the emergency regulation suspending the date of polling, he believed he had no option but to comply. However it emerged from the judgement that the Returning Officers for all the relevant districts suspended the issue of postal ballot papers at least a day before the gazette notices declaring a State of Emergency was issued under the Public Security Ordinance. This sequence of events suggested that, far from being confronted by a Presidential fiat accompli, the Election Commissioner and his staff had assisted the President in her schema.
The Court made the following declaration regarding the suspension of the postal ballot;
While appreciation the difficult position of the Commissioner, the Court pointed out that the Office of the Election Commissioner had constitutional guarantee of protection in carrying out his duties and also that he could ask relief from the Supreme Court in the event of being compelled by the Government to do any illegal act.
Court further made declarations that the Respondents had infringed the fundamental rights of the Petitioners by violation of Articles 12(1) and 14(1)a of the Constitution for failing to take steps to conduct the poll for the five Provincial Councils on 28th August, and by failing to fix a new date for the poll. The Supreme Court further directed the Commissioner of Elections to fix a date for poll within two weeks of the Judgement.
The Wayamba Election (North Western PC Election) was concluded on the 25th of January 1999 and it is no exaggeration that it was by far the most violent election experience that the country has witnessed. The main perpetrator of violence was the ruling alliance against whom wide spread allegations of violence and malpractice were reported. Of the 895 incidents of violence reported by the Centr for Monitoring Election Violence, during the election campaign 405 was against the Peoples Alliance (PA) 202 against the United National Party which is the opposition party and 281 against parties not identified. On the day of elections of the 662 incidents reported 394 were made against the PA and 66 against the UNP and 199 where parties were not identified.
However it is evident by the blatant disregard for election laws and inhuman acts of violence practised at the aforesaid Provincial Council Elections, the absence of any signs of contrition or remorse over the incidents that occurred and the lack of any convincing steps to prevent the recurrence of such incidents in the future - that the Government intends to hold onto power at what ever the cost and by what ever means.
In the aftermath of the shame of Wayamba Elections, the Government has taken recourse in blaming the electoral system (PR system) as the cause for the damage inflicted on the democratic process. Though it is clear that the electoral system in the country leaves much to be desired and is the cause for much of the abuses of governance, it is a lame excuse trotted out by the Government that the change of electoral system could redress the present grievances. It is beyond all comprehension as to how the connection was concocted between the electoral process and mass rigging, ballot box stuffing, voter intimidation, brutal premeditated violence and systematic large scale disruption of polling stations that occurred during this notorious election.
The protection to the integrity of the electoral process is central to governance in a country. However in order for this to be achieved it calls for fundamental change it the countries political culture. And a sincere and determined effort on the part of the politicians as well as the civil society.
In the aftermath of the Wayamba debacle and in definite response to the castigation meted out by the Supreme Court the Commissioner of elections publicly requested the Government to Amend Elections laws before the forthcoming PC elections in order to ensure free and fair polls. The amendments suggested by him were mostly intended to curb situations arising on the date of poll and give the Commissioner the power to annul polling in stations where it could be proved that elections were flawed.
However the Government response to the request of the Commissioner was cold and non committal.
The Government, instead of a positive response to this request of the Official who is primarily responsible for the conduct of elections, went ahead with its plans of a all party elections monitoring committee. Though many welcomed this suggestion of an implementation of a all party monitoring committee, few seem to know what exactly it was supposed to do and fewer still as to what it would do to protect the integrity of the electoral process which was so blatantly compromised in the Wayamba elections.
Through the concept behind the formation of this committee is entirely to be welcomed even at symbolic leave, at least as an acknowledgement by the political establishment that something must be seen to be done to ensure free and fair elections, the establishment of such a committee as the chosen method for its protection does raise some awkward questions.
Protection of the integrity of the electoral process is central to governance in this country and the constitution identifies an institution namely the office of the Elections Commissioner as primarily responsible for the conduct of election. What is the relationship of this all party monitoring committee to this office. Would it not be more appropriate to martial a bipartisan consensus to strengthen the powers and stature of the Office of the Commissioner of Elections instead of taking action that could be perceived as possibly detracting from it.
Questions are asked whether this Committee is a result of ad hoc crisis management and therefore a temporary regulatory, even corrective mechanism or whether it is to be a permanent fixture.
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1Reconceptualising Government, UNDP, 1997.
2The UNDP defines human development as expanding the choices for all the people in society. This means that men and women - particularly the poor and vulnerable - are at the centre of the development process. It views economic growth as a means to sustainable human development, rather than an end in itself but focuses more broadly on development which addresses issues of empowerment, co-operation, equity, sustainability and security.
3DR. P. Saravanamuttu, on Options and challenges for Sri Lanka.
4The Law and Society Trust, Sir Lanka, State of Human Rights 1998 pg. 44