On putting anachronistic institutions right
by Malinda Seneviratne
"Ours is a system which is anachronistic, obsolete. We have to change this. Public servants must be creative and not politicised. Creativity, acumen and experience of public servants are essential in the government’s development approach. We want to restore a robust system of public service." All true. We lost some of our best minds to the brain drain from 1972 onwards. Those who remained were shunted around from one insignificant department to another. The public service became so unattractive to the best minds that it gradually became an ambalama for mediocrity. No self-respecting would-be civil servant would want to be at the beck and call of two-bit politicians, more often than not, thieves or murderers or both. The entire public service started crumbling from its foundations after 1972, thanks to Colvin.
According to Peiris, "this is the ideal time to put in motion the police, public service and bribery commissions set up under the 17th Amendment." Yes, it is perhaps time to revisit the 17th Amendment.
Article 55 (3), which comes under the chapter on the Public Service, clearly states that the appointment, promotions, transfers, disciplinary control and dismissal of all departmental heads, is vested with the cabinet. If Peiris wants de-politicisation, then he could start with Article 55 (3), best dealt with by deletion. He has gone on record to say "Although with due respect to the then Constitutional Minister, Dr. Colvin R. de Silva, it was admitted by previous and present governments that a profound error was made by him while drafting the amendment (in 1972) which de-motivated the public officers, limited their creativity in taking important decisions." Knowing all this, when the 17th Amendment was up for debate, Peiris did not utter one word of objection. Such serious omissions could be forgiven in the case of the run-of-the-mill politician. Peiris, however, is an expert on constitutional affairs. A technocrat.
He cannot take refuge in the fact that he was not the author of this piece of legislation. Even if one were to grant him relief on that account, he can be collared on the Act No. 19 of 1994, which instituted the Commission to Investigate Allegations of Bribery or Corruption (in common parlance "the Bribery Commission") after securing more than two-thirds support in parliament. This was when Peiris was the Minister of Constitutional Affairs. What of the Bribery Commission today? The following is the gist:
"More than 500 complaints are piled up, 58 investigations at standstill in the Bribery Commission, which has become non-functional following the death of Commissioner T.N. Abeyweera, on February 4, 2003." Non-functional, not only because of this death, one might add, for the Act is ridden with flaws that severely hamper the work of the commissioners. These demand inquiry.
Peiris has failed to include the obvious safeguard regarding a time-frame for appointment of commissioners in the event of dismissal, resignation or death. Thus, the appointing authority, the Constitutional Council and the President can take their own sweet time, especially when it is politically sensible for them to do so. If you have problems with the simple matter of appointment, then the commission is effectively a still-born baby. In other words, it was designed not to function. According to the Annual Report (2001) of the Commission, the cost to the tax payer is a cool 50 million rupees. Thank you, G.L. Peiris.
It is not that the commission ran into problems only on February 4, 2003. Even in the early years of the PA regime, there was an incident where the president, upset over the work of the commission, promptly brought pressure on one commissioner to resign, and when he refused, ordered the withdrawal of critical human resources such as the police, effectively reducing the commission to its members, buildings and furniture. At that time, there was no Police Commission to intervene. Today, we do thanks to the 17th Amendment. But what a police commission we have!
After a long and undue delay, the Police Commission was finally put in place late last year. The Police Commission, we note, enjoys the widest powers among the independent commissions as per the 17th Amendment. It holds powers relating to practically all matters except for the appointment of the IGP. Even with such wide powers, it has already faced two critical cases in the Supreme Court. First, with respect to the appointment of DIGs. Secondly, regarding the appointment of SSPs. In both these cases, the Police Commission had not exercised its powers and the aggrieved officers has to seek redress from the Supreme Court.
Ranjith Abeysuriya, Chairman of the Commission, does not seem to have read the Amendment nor his job description. The Commission was instituted at a time when promotions, transfers etc., were totally based on the relevant officers’ relationship with politicians. The Commission was to correct this. The first thing that the Commission should have addressed was the establishment and gazette notification of a service minute for the Police Department that includes all matters relating to appointments, transfers, promotions and disciplinary control. Instead, the appointment of DIGs was allowed to be handled by secretaries of ministries, who, as Peiris acknowledges, are political stooges. After the DIGs went to court, the Commission woke up and developed a scheme for the DIGs. Then came the appointment of ASPs and SSPs. The court ordered the Commission to devise a fresh schedule of promotions which would take into account seniority and merit and further said, "the scheme thus formulated should be given adequate publicity so that officers would know specifically what criteria would apply." In one word, transparency. That it required a court order to educate Abeysuriya about transparency speaks volumes for his competency.
All this was followed by the issue of vulgar behaviour of people’s representatives, so-called with respect to police investigations. Instead of telling the IGP to act without fear or favour, or else run the risk of being taken to task for failing to perform duties, this is what Abeysuriya has to say:
"We are very worried that no action has been taken. Although the Police Commission has no power to initiate action, we would like the IGP to act on this regard." This eminent lawyer is lying through his teeth. Article 155g clearly states that the Commission has the power which Abeysuriya believes he doesn’t enjoy. If, Abeysuriya honestly believes he is powerless and lacks the imagination and vision required to restructure the conditions of the Police Department, he can take refuge under Article 155A (4), and rescue himself from his misery.
De-politicisation is only one part of the problem. According to K.N. Choksy, "we have a million strong public service which needs to be downsized". Downsizing would, he argues, facilitate efficiency. He suggested as one of the measures a compensatory early retirement scheme. It is surprising therefore, that the current Commissioner of Elections, Dayananda Dissanayake, poor man, has to go to court on his own account to secure his retirement.
The petitioner complained that his fundamental rights were violated by the failure of the president to appoint an elections commissions on the recommendation of the Constitutional Council, thus preventing him from retirement at the age of 61. The Supreme Court notified him to remain in office until the said commission was constituted. G.L. Peiris, who talks of "oversight committees, a code of ethics for politicians and conscience bills, says nothing about the constituting of the Elections Commission. Why?
Isn’t an independent election commission a necessary organ to stem the politicisation that Peiris so dislikes at the very root, i.e. the moment when a person becomes a politician? The UNF government blew their top when the president took over the Development Lotteries Board, but have remained silent regarding her inaction with respect to ratifying the names proposed by the Constitutional Council for the Elections Commission. The reason is obvious: political double-dealing and hypocrisy. Just before the next elections, I predict, Dayananda Dissanayake will be sent on leave and another political stooge will be appointed to oversee the rigging of the polls. Since the president and the prime minister are from two different parties, they will collude to appoint a deaf, dumb and blind person. The party which is cleverer at rigging will emerge triumphant.
Politicisation is not limited to the police, elections and public service. Let’s take a peek at the foreign service. The nudity of our politicians are perhaps most evident in this sphere. The Island, has editorially, observed that the Foreign Ministry is a veritable "home for the aged and school for scoundrels". That career diplomats make up only a paltry 35% of the service says it all. If it needs to be spelled out, the foreign service suffers from at least 65% politicisation. Doesn’t Peiris understand that the foreign service is an essential component of the public service? Isn’t the foreign service also anachronistic, obsolete and devoid of people who have creativity, acumen and experience? What steps has he recommended to correct this state of affairs?
As a result of the politicisation which distresses Peiris so much, there is a manifest lack of accountability and transparency in state agencies. The problem is larger than the independent commissions and the personnel they oversee. The Country Financial Accountability Assessment (CFAA) Report prepared by the World Bank states that in some majority owned government companies, because of management contracts given to third parties, there is no clear means of making these institutions accountable to the public. Most notable of these are said to be Sri Lanka Telecom and SriLanka Airlines. Neither the World Bank, nor anyone else, speaks about the lack of accountability and transparency in the financial affairs of provincial councils and local government authorities, whose budgets run into billions of rupees. Government or legislative control over these institutions are weak or absent.
Tip of the iceberg
Peiris would do well to make a mental note: "the politicisation of the public service is only the tip of the iceberg." In this country, taxation, utilisation of funds and evaluation of progress made are in fact "anachronistic, archaic and obsolete". And yet, when tax concessions are offered, it is done in a "novel", "efficient", and "creative" manner. The question was simply resolved through an act of parliament and the biggest winners happen to be those who have been accused by the Fair Trading Commission for abusing their dominant positions or engaging in anti-competitive practices. High on the list are Shell Gas (a Dutch multi-national), Ceylon Oxygen (a Norwegian-owned company), Distilleries Company (Harry Jayawardena’s), Sri Lanka Telecom, Unilever and 11 insurance firms. This government has subsided thieves and robbed the ordinary citizens. And it is for such a bunch of charlatans and political quacks that the Prime Minister appoints a committee to set up a "code of ethics for parliamentarians and ministers". In Sinhala one would say, "atheesareta amuda gahanawa vage" (trying to stop diarrhoea with an under-cloth).
All politicians, Peiris, Wickremesinghe and Chandrika included, are merely mouthing statements that can make them look like democrats and those genuinely interested in good governance. They are engaged in image marketing for the benefit of perhaps the "international community". They fool no one here in Sri Lanka. The onus is on the people to rein in the politicians. They are going crazy, driving this country towards further indebtedness and insolvency while they enrich themselves, their families and their cronies in the name of capitalism and privatisation.
Reining in the politicians requires the immediate appointment of the elections commission, a review of the 17th Amendment in order to strengthen it, a reconstitution of the Bribery Commission as a "Counter-Corruption Commission" with powers to investigate those in high office including the president, and the inclusion of an independent audit commission. We have a long way to achieve political independence. Democratic institutions will never be created by these politicians unless people demand them. It is time that the citizenry stood up and spoke.
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