Ceylon Today Editorial

TAMILS – THE DEFICIT OF TRUST

19 March 2017

The crisis of modern democracy is profound. It is also one that is relevant to the Lankan experience of the Judiciary and the concept of justice as we have known them over the past 15 years or more in this country. Free elections, a free press and an independent judiciary mean little says Arundati Roy, adding that the crisis factor appears when "the free market has reduced them to commodities available on sale to the highest bidder".

Before this government came to power Sri Lanka struggled through a crisis of democracy in which social justice and political justice were mere commodities in the political market.Those were the years in which we could have written "Ichabod" across all our courts of law. Those were the days when true, patriotic war heroes who commanded the Army against ruthless terrorists were dragged along pavements, shoved into vans and dumped on the cold, filthy floors of Welikada Prison. Those were the days when a Chief Justice was subjected to national and global public ridicule because she said "enough is enough" and would not let herself be bent any further to permit the law to be made a plaything of the rulers who were then bent on making a mockery of the Constitution.

The Tamil population and the world looked on....and absorbed, and analyzed this phenomenon. Can anyone, therefore, blame them for demanding independent judges on a war crimes probe or even on a Truth Commission which many Tamils now seem to be rejecting?

Last week the TNA rubbished the idea of Tamils receiving justice even in the case involving the promised return of land in Keppapilavu and other major earlier Tamil land holdings. One needs to be careful in making this differentiation between the largely peace-loving Tamil people instead of tarring them with the terrorist brush. We hailed the return of land in Keppapilavu to the original settlers, who were told received land grants to that land as far back as 1920. Alas, only a handful of few have been allowed access to their former homes there. The same is true of land belonging to many thousands of other Tamils in other areas which are either occupied by the Air Force or Army.

This shows us that justice is not merely delivered by the Judiciary. Certainly not! It's this message that is not getting across to the authorities adequately. The Judiciary is only a last resort when justice has been denied to a citizen in his daily life. Issues such as this taken together with the experiences at the hands of the law and judiciary during the tenures of the former government are the basic factors which burned into the Tamil psyche a deep distrust of what we will refer to as the Law and the Judiciary in Sri Lanka.

What the Tamil psyche cannot erase from its collective awareness is the impression that even today's Judiciary, in the context of a war crimes probe, will not essentially be really and truly independent of the Constitution because it is perceived as being still a pliable tool in the hands of those who formulated the Constitution and hence indirectly derive their powers from them. When Prime Minister Ranil Wickremesinghe said a fortnight ago that the government simply cannot take a proposal for foreign judges on a probe commission, to a referendum, he was stating a simple fact. But the Tamils see this as confirmation that the new Constitution, which will presumably be the one under which a war crimes probe will be launched, will be a majoritarian will reflected in the voting by their MPs in the Legislature. And it is that Constitution that will determine the appointment of Judges, who are seen as "Commodities available for sale to the highest bidder." History, therefore, is the factor at fault here. We have had personal experience of seeing these 'commodities' adorning the seats of high judicial office not very many years ago. This needs to be said only because someone has to make an effort to prod both sides into a deeper understanding of real factors which create this huge deficit in trust in the Tamil psyche in what is seen as the "Sinhala Majority Judiciary" and not just as the Judiciary per se. Recent historical experiences have burned deep wounds of distrust into the collective Tamil mind. The powers that be must examine this truth and do something constructive to demonstrate to the Tamils convincingly that they really and truly can trust...have faith in the Lankan Judiciary when they come before it in a war crimes probe, for justice.

But, first we must earn that trust by delivering justice to them outside the courts of law, commissions etc.

We can begin that process by restoring to the homeless their former homesteads. It will go a long way to regaining their trust.

The Nation Editorial

Make way to change

19 March 2017

Changes are inevitable. But, many fear change. They mainly fear change because they fear how ‘change’ will affect them personally. Whether the change is good or bad, or whether it benefits many, does not enter into the initial equation. We treat change with skepticism at first, and then begin to accept it gradually. As time goes by, we eventually become used to them.

But, then new changes come in and the cycle continues. Change, when it is forced, is an unwelcome guest.

Sri Lanka is no exception to resistance to change. The country’s public sector is an apt example where changes are resisted and responses are made through protests.

Over the years, most institutions in the country’s public sector have resisted change.

The fact that our public sector needs to change is no new phenomenon. While the private sector firmly believes in service providers and customers, the mindset is totally differed in our public sector.

The organization is the giver and the general public is the receiver. On most occasions than one, the Public is at the proverbial receiving end.

You would have at least once had the experience of being sent from pillar to post in a public sector office to get a letter signed, only to be told that the relevant officer was at lunch, or off for the day. You would then have to make that entire trip on another day.

But we still do it because there are services that are only provided by the country’s State sector. The issue here is that there is a big mismatch in the number of customers and the resources to cater to the customers.

Take for instance, the country’s transportation system. Public transportation is a nightmare for millions of people who travel by bus and trains. The race between SLTB and private buses, and then among the private buses, are a nuisance in itself.

Then you have the railways. It has become a normal sight for us to see commuters hanging out from all sides of the train compartment, risking their lives every day in order to get to work and back home.

The number of passengers seems to be increasing, but not the number of compartments. Why are not the authorities increasing a few compartments so that the people will not have to keep their lives on the line when they travel?

There are millions of commuters, but limited buses and train compartments.

In most cases, the public would never bother about the government if three things are functioning properly, namely, power, transportation and postal. Sri Lanka is no exception. Unfortunately, in Sri Lanka, at least two of the sectors have become a matter of concern for the public, and for the government.

On the other hand, not a day goes by without a protest in Sri Lanka today. In fact, there are more traffic jams due to protests than because of errant drivers and accidents.

On several occasions they have come to the streets against government’s moves to bring changes to the existing system. The aim of the government is to give the public the service it deserves in this sophisticated age, a service comparable to other developed nations. After all, the government is mindful of the millions of people who vie daily to obtain services.

A government not only wants a satisfied population but a contented voter base.

The problem arises here when the government wants to make things better for the million odd members of the public, a few thousand workers in a particular organization gang up against proposed changes.

It is the bailiwick or little empires they want to protect their cushy life with no care for the public.

But why hold the public to ransom? In most cases, members of the general public are helpless. They cannot do much about it except to mutter to themselves, post statuses on social media platforms and go to their homes. Yes, they do come back to you for their needs, but that should not be taken for granted. The public sector is indeed service-oriented.

But the officials are being paid for what they do. It is therefore not fair to test the patience of the public just because you do not want something changed.

Sunday Times Editorial

Sri Lanka and the born-again Commonwealth

19 March 2017

Interestingly, if not ironically, the British Government having voted to exit the European Union (EU) in accordance with the wishes of a majority of its people, is now looking forward – or maybe looking back – at the Commonwealth once again.

The 53-nation Commonwealth, the third largest global grouping, next only to the United Nations and the Non-Aligned Movement, was often contemptuously dismissed as a club living in the somewhat inglorious past of the British Empire serving neither man nor beast. And then, Britain, the primus inter pares in this club, itself dumped the Commonwealth for a new and more attractive bride – the EU, until it found that was a mistake.

Marking Commonwealth Day last Monday, a day long forgotten except by the titular head of the group, the Queen of the United Kingdom, Britain’s Prime Minister Theresa May spoke of a “truly global Britain”, a clear reference to looking beyond Europe – and re-engaging with other countries, mainly the Commonwealth of nations.

The week before, Trade Ministers from 35 of the 52 member-states, including Sri Lanka’s Trade Ministers met in London. (Yes; we have two Trade Ministers). The fact that the Commonwealth Trade Ministers were meeting for only the first time since 2005 spoke for itself.

Sri Lanka’s International Trade Minister Malik Samarawickrama gave a sound-bite to the media on the sidelines of the meeting saying it was the right time “for a new Commonwealth trading bloc”. Unfortunately, we have no further information on what this ‘new Commonwealth bloc’ is until the Minister enlightens us.

Britain’s decision to sideline its age-old trading partners in the Commonwealth was recognised at that very meeting and the country was asked, not necessarily to beg forgiveness, but to re-approach with “a degree of humility” old partners who were cast aside.

As Britain moved away from the Commonwealth (its funding dried up so much that the Commonwealth Press Union once known as the Empire Press Union, had to fold up, one day short of a hundred years of existence), so did the other Commonwealth countries move away from Britain. They had to seek new trading partners. Many countries found a great new economic partner — China.

China has spread its tentacles — and its influence far and wide, especially in the Asia-Pacific region and Africa where much of the Commonwealth membership is. As everyone knows, Sri Lanka too has had to look to China in recent years for economic succor, though not necessarily in trade.

Last year, Sri Lankan exports plummeted by as much as 3 percent and this decline continues despite what was an anticipated prognosis that a new pro-West Government in 2015 would attract more markets abroad. With its mainstay, garments only showing a marginal increase, and the EU still keeping Sri Lanka waiting for the GSP+ concessions, the country’s Balance of Payment problems have aggravated. The domino effect on the ordinary citizen is felt by inflation topping income levels and the resultant rise in the Cost of Living.

With the rupee continuing to slide to the US dollar, some expecting it to hit Rs. 160 sooner than later, all imported items will be costlier. Economic analysts point out that if the Sri Lankan consumer, especially the growing middle class, is forced to cut back on his or her lifestyle, it would have a knock-on effect on foreign investors who will not see Sri Lanka as a worthwhile market to invest in. The only attraction then in Sri Lanka would be for manufacturers seeking re-export facilities to third countries.

Our Economic analyst, Dr. Nimal Sandaratne, a former Deputy Governor of the Central Bank said last week in his column that Sri Lanka’s crisis is because of “the fundamental weaknesses in the trade balance, capital outflows, the non-realisation of expected inflows of Chinese capital and inadequate foreign investment”. Our exports earnings are only a little over a half of our import bill.

Many economic analysts blame inconsistent statements and actions by the National Unity Government for the lack of investor confidence in Sri Lanka. UNP Ministers and SLFP Ministers talk differently on economic policy leading to confusion all round. Unable to articulate their intentions properly, coupled with a veil of secrecy in what the pro-free market UNP Ministers want to do has given rise to suspicion that a cabal is dictating the Government’s economic agenda. This in turn, has met with objections from SLFP Ministers, including the President. SLFP Ministers more comfortable with an outdated pro-centralised economy are often tripping up the UNP Ministers, the result being the Government is going nowhere.

Sri Lanka is not ‘the only girl on the beach’ anymore. Many other countries have already made inroads into markets which Sri Lanka long thrived on; tea, apparels, tourism and while some of these newly emerging countries have already forged into diversified fields like electronics, Sri Lanka stagnates. Free Trade Agreements with Singapore, China etc., controversial as they are, still remain on the drawing boards and an FTA + called ETCA with India has already raised an anti-Indian bogey.

Going back to Britain’s Commonwealth ‘Born Again’ strategy, it is pertinent to note that while it calls for a return to the past, an all-party parliamentary group for Tamils (Sri Lankan Tamils only, it seems) just late last month slammed the Government of Sri Lanka for slow progress in post-war reconciliation and the setting up of a war crimes tribunal with foreign judges via the UNHRC Resolution 30/1 in Geneva.

The British Government, with its Lilliputian allies like Macedonia and Montenegro, who have nothing to do with Sri Lanka are now the new promoters of Resolution 30/1 in Geneva. Only MP Ian Paisley defended Sri Lanka in the House of Commons committee saying when Britain rejects an international inquiry into ‘Bloody Sunday’ or the Iraqi invasion, it runs the risk of being hypocritical in asking others to hold international inquiries. To a lesser degree, the former foreign affairs state minister Sir Hugo Swire said that the very fact that the parliamentary group was for the interests of the Tamils in Sri Lanka displayed how anti-integration the British Parliament might be seen to be and added that what all Sri Lankan communities want right now is “economic prosperity”.

Last month, Sri Lanka marked 69 years of Independence from Britain, but it has not sunk into many British MPs that the writ of Westminster no longer holds sway over this country. Maybe, they are only pandering to some of their constituents, but the British Government will have to make a call on wanting to do business with its old Commonwealth partners, while hauling some of them over the coals at the same time.

Sunday Observer Editorial

Success in Geneva

19 March 2017

While much of the government and Sri Lankan society is increasingly focussing on our post-war future with its prospect for prosperity and stability, certain groups are focussed on what is going on in Geneva, Switzerland, where the UN Human Rights Council (UNHRC) currently sits in its 34th session. At this meeting last week, Sri Lanka successfully collaborated with its supporting countries to present the draft for a new resolution on the country that will provide for another two years to implement the country’s commitments to the revival of democracy and good governance.

On the fringes of the UN sessions a number of groups have been busy lobbying on various aspects of the commitment Sri Lanka has made to the UNHRC. These commitments basically cover requirements to redress wrongs of the past and, steps to ensure that these wrongs and similar lapses are avoided in the future. The substance of the UNHRC resolution on Sri Lanka is expressed in the following catch-all phrase in the resolution text: “… promotion and protection of human rights and truth, justice, reconciliation and accountability in Sri Lanka …”.

Those lobby groups in Geneva are a diverse mix of Sri Lankan and foreign groups, and include professional organizations working to protect various kinds of human rights or, to facilitate improved relations between once-hostile ethnic communities, or to help weaker or marginalized sections of society, such as, low castes or women or homosexuals or war-affected people. There are also groups of Sri Lankans and former Sri Lankans now domiciled overseas who are lobbying either on behalf of ethnic minorities for their rights or, for war victims or, most recently, for the interests of the members of the Sri Lankan armed forces.

One may wonder as to why anybody, other than the Government of Sri Lanka and the President, as the constitutional commander-in-chief of the armed forces, should attempt to represent the interests of the armed forces and intervene on their behalf.

After all, it is the President who, constitutionally, has full control of the nation’s military forces and, it is the Government who administers the forces using public resources. Since the Government delegation is officially attending the UNHRC session it has the responsibility to look after the interests of its public servants, including the armed services personnel.

The Government does not merely look after interests of forces’ personnel but, also, of the armed forces as institutions, indeed, vital institutions of state.

One may also similarly question as to why non-governmental groups both local and foreign are active in Geneva on behalf of different sections of the civilian citizenry, such as, ethnic minorities, women, etc. After all, does not the Government have the final say as regards its citizens too? And therefore, should not the Government delegation be adequate to represent the interests of diverse groups of the citizenry?

While the government does have the final responsibility to look after all its citizenry, it is the public servants who are directly its employees and, thus, need direct representation and protection of their interests. Thus, while the Government should and does fulfil its responsibilities vis-à-vis the armed forces, when non-governmental groups claim to “represent” the interests of ‘war heroes’ who can be none other than members of the armed forces, there is a dangerous confusion about national responsibility and a wedge is driven between the elected government and the security services it is supposed to directly administer. Such attempts by private citizens – whatever their professional past - to lobby on behalf of a most important arm of the state serves to confuse, both, the troops and the nation they are committed to protect.

It is inherently democratic for groups of private citizens to band together to look after their own interests or the interests of their fellow private citizens. In doing so they may be complementing the work of government agencies also looking after the interests of citizens. And if government agencies remain oblivious to the woes of ordinary citizens, such non-governmental rights groups should be there to take up such cases.

In Sri Lanka, despite the harassment (including murder) they have received at the hands of successive governments and their henchmen, such non-governmental organizations toil on. There are also groups of former Sri Lankans or foreign-domiciled Sri Lankans who are busy in Geneva to lobby purely on behalf of this or that ethnic community, irrespective of whether such lobbying for one community will harm the interests of another. Hence, there are some Sinhala groups crying out for the rights of the Sinhalese while there are Tamil and Muslim groups crying out for their community’s interests irrespective of whether there is a clash of interests.

Readers will understand the complexity of the issues being dealt with in Geneva. What is most important is that this time round these complexities are being addressed in full transparency and with safety assured to those non-governmental groups also active in Geneva. Gone are the days when even government Ministers could publicly (in front of TV cameras) threaten to “break the limbs” of activists lobbying in Geneva for the rights of all Sri Lankans, whatever their ethnic origin.

This transparency and freedom of expression is surely one of the reasons why Geneva is softer on the Sri Lankan government today, compared with that darker past. What is needed is the continued and rigorous fulfilment of those commitments so that the Geneva process ends once and for all. After all, such commitments to democracy and accountability will directly and immediately benefit us, Sri Lankans, not the diplomats of other countries in Geneva.

Sunday Island Editorial

Ruffling feathers

19 March 2017

 

Whether public interest activist Nagananda Kodituwakku will succeed or not in his attempt to end the long-running practice of enriching legislators by the issue of duty free permits must await the determination of a three-judge bench of the Supreme Court headed by Chief Justice Priyasath Dep. However that be, Kodituwakku’s efforts certainly enjoy the support of public opinion which successive governments have totally ignored in continuing to bestow this benefit on the political class. The sunshine has been lavishly spread around to senior public officials, state-employed professionals, university dons and some others who have also benefited from these permits. Whether there is a reliable figure on the resulting revenue loss to the state (and aggrandizement of the beneficiaries) or not, we do not know. But Kodituwakku has placed a figure running into the billions on what the perk had cost treasury coffers on the issue of these permits to MPs.

A former customs officer and an attorney-at-law, Kodituwakku is arguing his case himself. He has used the Right to Information law (RTI) to good effect and obtained from the Department of Motor Traffic the names of 85 Members of Parliament belonging to both the Government and Opposition who have made full use of the scheme and stuffed their pockets. He has told court that most of the vehicles have first been registered in the names of the permit-holding MPs and then transferred to the buyer immediately thereafter. It appears that the buyers had funded the imports too and the sellers have coolly pocketed the huge difference between the cost price and the agreed sale price! It is not only MPs who have sold vehicle import permits. Other beneficiaries, including those issued permits on the basis that they were big income tax payers over many years, have also done that. They have been allowed to do so and such sales were not illegal, as far as we know. The taxpayer privilege has now been discontinued after it was in operation for a limited number of years.

It is not necessary to labor the point that motor vehicles imported into the country have been expensive to buyers even in the spacious early post-Independence years. This is because governments, seeing an excellent revenue stream in vehicle imports, have always taxed them heavily. Taxes then were, of course, nowhere near what they are today when high-end vehicles may be taxed 200-300 percent of their cif (cost, insurance freight) value. Incomes then too were not what they are now; so also the exchange rates and the country’s money supply. There was a time when there was some reduction in the very high duty rates imposed on vehicle imports. That was due to the treasury finding that sky high duties necessarily reduced the quantum of imports and what was gained on the duty swings was more than lost in the roundabouts with fewer vehicles brought into the country. Eventually a balance of sorts was achieved although it is obvious to all that our roads lack the capacity to handle even a fraction of the loads they carry.

Quite apart from the lack of equity, which must necessarily be among the first principles of taxation, governments have bestowed vehicle perks unaffordable to an economy with limited resources on its employees. If a government official, be he/she a minister or somebody lower down the political or bureaucratic hierarchy, is provided an official vehicle that is chauffeured and fuelled at taxpayer expense, why should that official be given a duty free or concessionary duty permit worth lakhs if not millions of rupees to import a private vehicle? It is no secret that official vehicles are freely abused for private purposes and little or no effort is made to curb such malpractices. Time was when not even ministers, permanent secretaries, heads of departments etc. were allotted official cars. They drove from their homes to their offices and back in their own private vehicles and paid their drivers (they were not grandly called chauffeurs in those days) out of their own pockets. Government servants at a particular level were given car loans – we do not know whether these were interest free or low interest – and they used them for official travel claiming mileage at specified rates. Older public servants would remember that these claims were quite sufficient to meet the loan installments. But times have changed and vehicle privileges bestowed on employees of both the public and private sectors here are far ahead of what prevails even in the rich developed countries.

Be that as it may, the result of the litigation Kodituwakku has initiated is awaited with wide anticipation. He has sought a writ calling upon the court to direct the Bribery Commission to initiated "a credible and independent" investigation into the abuse of the tax-free permits by the MPs he has cited. While the Attorney General’s representative appearing in this matter had informed court that an investigation into the complaint to the Bribery Commission had begun, the petitioner had rejected this assurance saying nothing was happening. The court must, of course, look at this matter from the standpoint of the law rather than other considerations including what people think. However it may be said that some judicial activism in matters such as this, as seen for example in India, will not be out of place. Courts often do not grant what petitioners seek in actions before them. But they have been known to make what is called obiter dicta, a judge’s expression of opinion uttered in court or in a written judgment, but not essential to the decision and therefore not legally binding as a precedent. Such expression of opinion has often signaled the right direction.

If there is no legal barrier, there will be no course correction. That much we can be sure of. It is very difficult to take back what has been granted – especially to influential sections of the polity and the bureaucracy. One reason why President Premadasa faced an impeachment attempt was because he was trying to stamp down on MPs selling their duty free vehicle permits on so-called ‘open papers.’ He backed down on that attempt. Whether he wins or loses, Mr. Nagananda Kodituwakku must be congratulated for his efforts. His action has ruffled feathers in many dovecotes.