Columns - FOCUS On Rights

Mega corruption and an election
By Kishali Pinto Jayawardene

When a Right to Information Law was drafted over the course of several months in 2003 by a team headed by then Attorney General, Mr KC Kamalasabeyson, PC (one of the lamentably few in recent decades who held that post with a measure of commitment to do the best he could in undoubtedly difficult times) and comprising representatives from government ministries as well as media groups, it is no secret that a clause in regard to whistle blowing was pushed into the draft with considerable difficulty.

The nature of protecting whistleblowing

The clause (draft clause 34) protected any employee of any public authority (notwithstanding any legal or other obligation to which that employee may be subjected to) from any punishment disciplinary or otherwise for releasing disclosing any official information which is permitted to be released or disclosed on a request submitted under the RTI Act. There was a condition attached however to this protection; the employee should acted in good faith and in the reasonable belief that the information was substantially true and such information disclosed evidence of any wrong doing or a serious threat to the health or safety of any citizen or to the environment.

Free expression advocates have suggested that the ambit of the proposed section 34 should be expanded beyond disclosure permitted by the Act. It is also urged that the definition of "public authority" be broadened to at least include private bodies which exercise public functions. However, the fact that even a clause of this limited nature was brought into the draft at that point was an encouraging development. Clause 8 of the draft also obliged the relevant Minister/government body to divulge documents in relation to foreign funded projects (where the value exceeds one million united states dollars and locally funded projects (where the value exceeds five million rupees). The information would be released according to guidelines prescribed by the Right to Information Commission to be established in terms of the law.

Discarding of the RTI draft

This RTI draft was finalised during the short lived tenure of the United National Front (UNF) administration. Unlike the other RTI drafts, for example put forward by the Law Commission of Sri Lanka, this draft actually went up to Cabinet level and was approved. With the change of government thereafter, it was unceremoniously tossed in to the dustbin. Chandrika Kumaratunga’s regime did not care very much for Freedom of Information or for that matter, for the right for whistle blowers to be protected. Her successor, Mahinda Rajapaksa has shown himself to be equally unconcerned. Indeed, corruption among the ranks of the 'privileged' (familied or otherwise) has risen to dizzying heights during the past few years. Coupled with an equally dizzying rise in cost of living levels, the disjunct between the two cannot be ignored. Regardless of those who may try to tell us otherwise, it is this and perhaps this in the main that will dominate the mood and tone of the forthcoming Presidential elections.

It can be argued that the UNF was scarcely innocent on that count either and justifiably so, given the mega corrupt deals that were exposed during that time. However, for whatever it was worth it must be conceded (and reluctantly so indeed) that the UNF administration was far more open to the idea of good governance being secured through an appropriate legislative framework. This was probably due to an astute realization that such laws and regulations were essential for the lifting of the economy and for the encouragement of good investments. Whatever the expedient motives were behind such moves, they were welcomed by a public increasingly weary of politicians swindling public monies.

Public confidence in ability of government to handle corruption

Currently, public confidence in the capacity of regulatory structures to effectively handle mega corruption is at its lowest ebb. The Bribery and Corruption Commission is not, in the minimum, even talked about in this context. As in common in the past, we will see abuse of the state electronic media and use of official vehicles for party propaganda purposes. The tactic of naming and shaming offenders has lost its impact. What effect could this have in a society where the concept of shame has become so conspicuously absent from public life? The Commissioner of Elections is also habitual in his pronouncements that he would confiscate any public property used for party purposes and would prohibit the state media from being abused but these are just nominal mountings. No such action is actually taken by him, even within the ambit of the existing laws.

This column has had occasion in the past to examine the rationale wherein political abuse of the state media, print and electronic, cannot be tolerated. The extension of this logic to prohibit propaganda use of state property, including vehicles, does not require much cerebral straining. The prohibition on use of public servants for party political work was illustrated in a classic case some years back when te refusal of a Samurdhi Niyamaka to obey a party command, (in this instance, the Peoples Alliance), to campaign and canvass support for the Alliance in respect of an upcoming Pradeshiya Sabha election, resulted in his suspension with no reasons given. He went against this suspension to court, contending that he had been singled out and victimised. Responding, the Supreme Court in a judgement spanning a mere six pages, affirmed basic norms of conduct to be obeyed by all political parties, particularly during elections. The question was simple. Can persons paid out of public funds, collected directly or indirectly from citizens of all shades of political opinion be used to advance the interests of those of one political persuasion alone?

In this case, Samurdhi Niyamakas were persons performing what was described as "the major poverty alleviation programme of the government" However, it was expressly required that they should perform in a manner devoid of politics. They were officers engaged in rendering services to the public, for which they were paid out of public funds. As such, a Bench comprising Justices Fernando, Wadugodapitiya and Gunesekera ruled that they could not be commandeered to work for one political party.

This prohibition applies to public funds being paid directly to one political party and not to others. It also makes no difference whether such payments are made directly to individuals or indirectly by diverting equipment, facilities of the State to the benefit of one political party.

Demonstrating anger of taxpayers

Notwithstanding such decisions, all major political parties have exhibited no compunction in conducting corruption free elections. Tax payers, irrespective of their personal political beliefs, should direct their immediate and collective anger at the continuation of these practices while the common man and woman can scarcely find enough money to survive the day. This is political obscenity pure and simple. Enough must indeed be enough.

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