There is a singularly wretched problem confronting the Sri Lankan people.  Stripped down to its essentials, this means that the country’s politicians must not be allowed to dilute democratic gains of January 2015 by replacing abject Rajapaksa non-governance during the last decade with appealing labels on institutions which make us all feel a bit more [...]


A series of raps over the ‘yahapalanaya’ knuckles


There is a singularly wretched problem confronting the Sri Lankan people.  Stripped down to its essentials, this means that the country’s politicians must not be allowed to dilute democratic gains of January 2015 by replacing abject Rajapaksa non-governance during the last decade with appealing labels on institutions which make us all feel a bit more comfortable about ourselves but with the underlying failure of democratic systems still continuing.

Not enough merely to dissent
It should not suffice merely to trumpet gladly that citizens have the right to dissent and to protest. Dissent was also possible during the Rajapaksa era if citizens had exhibited basic courage and determination. Probably if that fortitude had been displayed by greater numbers, the Rajapaksa regime might have been brought to its knees much sooner and without causing such extensive degradation to institutional governance.

But Sri Lanka’s political landscape is certainly stubbornly resistant to change. As a regrettable case in point, one has only to look at last week’s deadlock between President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe over the Governorship of the Central Bank of Sri Lanka (CBSL).

In all respects, former Governor Arjuna Mahendran should not have generated such extraordinary tension. Given the controversy that surrounded his actions for an unacceptable period of time, the Prime Minister and his confidantes should have heeded that apt Shakespearean warning that like Ceasar’s wife, the CBSL Governor should not only be above suspicion but seen to be above suspicion as well. Instead, sturdy defences were advanced to justify their positions. The damage done to the reputation of the CBSL was considerable. And the passing of the proverbial buck to the Parliamentary Committee on Public Enterprise (COPE) had all the calamitous potential for an implosion in the unity Government.

External appearances and internal dysfunctions
What occurred thereafter was akin to a page turner of a tense crime novel. On Friday, insulting the intellect of citizens, we were told to await, with presumably bated breath, the arrival of the Finance Minister to decide on the new appointment of the CBSL Governor even though this would have been quite supremely extraneous to the issue. To add hilarity to the mix, a release issued by the Information Department to that effect was denounced as false in subsequent agitated denials. On Saturday, the deadlock was seemingly resolved by the President’s announcement of a new Governor.

But this is no reason for contentment. This appointment means very little if the enabling environment is not conducive to the independent functioning of the CBSL. One has only to look at the recent resignation of the Director General of Wildlife Conservation, a well regarded professional. And for the future, the appointment of the CBSL Governor should be included in the schedule of appointments to key positions that are vetted by the Constitutional Council.

That said, the CC itself must be divested of its obnoxiously political character. Its record so far under the 19th Amendment has not been reassuring with inconsistent decision making in conflict with its constitutional role. Responding to public concerns, the CC recently issued an explanatory statement on its functioning. But there is no real clarity thereto. This is directly in contrast to both the composition and functioning of its predecessor under the 17th Amendment. It is important that external appearances should not be belied by internal (political) dysfunctions.

The dross of good looking labels
Indeed, the extent to which good looking labels are skillfully employed in this ‘yahapalanaya’ age is well seen in last month’s judgment of the Supreme Court relating to bids for the supply of coal for the Lakvijaya Coal Power Plant (SC FR No. 394/2015, SCM 24/06/2016) The Court administered a well deserved rap over the government knuckles for the blatant ignoring by all senior government agencies of the Government Procurement Guidelines in favouring a particular bidder.

The order reveals an astounding subversion of procurement guidelines by government agencies operating under the banner of ‘yahapalanaya’. These include the Standing Cabinet Appointed Procurement Committee brought to task for ignoring essential steps of the evaluation procedure in directing the Technical Evaluation Committee (TEC) to re-evaluate the bids. Equally grievously, the Standing Cabinet Appointed Procurement Committee had permitted lobbying of itself by the favoured bidder during the evaluation of bids.

In ruling that the contract entered into with the favoured bidder may be terminated after giving reasonable notice and fresh bids may be called for in terms of the law in regard to the supply of coal following competitive bidding procedure, the judicial conscience was proclaimed as ‘shocked.’

Dexterous evasion of public accountability
One cannot resist the mischievous aside that it is heartening to see Sri Lanka’s judicial conscience alive and well after years of suspected atrophy. Nonetheless, the judges must be commended for examining the merits of the case despite their predictable conclusion that the petitioner company in Singapore (and a rejected bidder) had no locus standi to invoke the jurisdiction of the Court. Refusing to let this technical bar stand in the way of substantially considering the matter, the Court reminded that otherwise, a government agency will be left free to violate the law which is contrary to the public interest in violation of the Rule of Law.

Notably, the judges observed that ‘every organ of the State must act within the limits of its power and carry out the duty imposed upon it in accordance with the provisions of the Constitution and the law; the Court cannot close its eyes and allow the actions of the State or the Public Authority go unchecked in its operations, in the public interest.’

The Court also reprimanded the Procurement Appeal Board for failing to give a right to be heard to the rejected bidder despite holding out an expectation in that regard. But regardless of judicial conscience and the last minute appointment of the Governor of Sri Lanka’s Central Bank, the devilish dexterity with which politicians manipulate public opinion which they hold so clearly in contempt, is manifest.

So that dilemma before us continues. Dissent and criticism should not result in the same failures of public accountability, albeit in a more sophisticated manner and with a somewhat more acceptable face.
That, by itself, is very clear.

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