Good governance: The hard road from slogan to reality

• “Seeking what is true is not seeking what is desirable” – Camus (An Absurd Reasoning)

Building up water-tight cases against the Rajapaksas and their close acolytes would be no easy task and a blotched job can discredit the entire effort, as the case of Tissa Attanayake demonstrates

On 5 January, the last day of the campaign, newspapers were full of advertisements, most supporting Mahinda Rajapaksa. Unique amongst them was a full page ad by the Diyawadana Nilame and the Basnayake Nilames of 31 devales. The ad denounced ‘local and international forces and other evil people’ who are trying to ‘commit the great sin of destabilising the country’; it also expressed full backing to the ‘holy leader courageously defending the country’. That surreal ad was symbolic of the state of the country after less than a decade of Rajapaksa rule. Everything was suborned to Rajapaksa needs and interests. Even the gods had to go the way of judges, military personnel, bureaucrats and diplomats, and become tools of Rajapaksa power. Instituting a sense of proportion, basic levels of intelligence and decency and the rule of law after a degeneration of such magnitude is no easy task. Take the rule of law – an indispensable component of good governance. Many of the most ardent opponents of the former administration are unhappy about the slow pace of justice (I know; I am one of them). More than a month has gone by since the Rajapaksas lost power; but they and their closest acolytes seem to enjoy an unacceptable level of impunity. Many wonder when justice will be done or whether it will be done at all. Bringing the Rajapaksas – or anyone else – to justice is not an easy task. A solid case must be built which can prevail in a court of law. The former power-wielders would have done what they could to hide the evidence of their crimes; uncovering their trail can take time and effort. And the Rajapaksas probably still has the capacity to slow things down, perhaps considerably. Building up water-tight cases against the Rajapaksas and their close acolytes would therefore be no easy task. And a blotched job can discredit the entire effort, as the case of Tissa Attanayake demonstrates. Tissa Attanayake ‘revealed’ the supposed agreement between Maithripala Sirisena and Ranil Wickremesinghe. Investigations have uncovered it was a bogus document. But investigations do not seem to have uncovered the author of that bogus document. Though the police took Attanayake into custody, they obviously did so without sufficient evidence that his was the hand (or the brains) behind the bogus document. While approving bail for Attanayake, the magistrate commented on the police’s inability to come up with any witnesses. Attanayake says he discovered the ‘Agreement’ by accident while going through some Health Ministry files. We can be certain that he is lying. But for a court of law such deductions – however obvious and logical – are of no interest, in the absence of actual proof. As the Tissa Attanayake case proves, arresting someone is easy; building up a case which can withstand the rigours of a free and fair trial is much harder. It’s better to take time to build up a proper case, rather than hurry things (due to pressure) and end up with a botched case. The Rajapaksas persecuted their enemies under the guise of prosecuting them. They turned the law into a charade and instituted trials which were total and manifest miscarriages of justice. The new Government can of course mete out the same treatment to the Rajapaksas. Such treatment is easy because they are a function of power and not of justice. But that is not good governance. That is not even intelligent governance. Every time the new Government reduces the moral-ethical gap between itself and the Rajapaksas, it discredits itself and helps re-legitimise Rajapaksa rule. Not the right thing to do; definitely not the wise thing to do, with the Rajapaksas waiting in the wings to make a grand comeback. The modus operandi used to resolve the CJ imbroglio did not reflect well on the government. Getting rid of Mohan Peiris was essential for good governance; but in order to get rid of him, good governance had to be violated. Once is enough. The new government must not tread that path again, for whatever reason. Means are as important as the ends. Those rulers who violate the rule of law for good reasons inevitably end up by doing so for bad reasons. 19th Amendment and Parliamentary maths The new Government promised to correct Rajapaksa errors and misdeeds, restore democracy and rule of law, provide relief to the masses and bring those suspected of murder and kleptocracy to justice. All in just hundred days! Some promises have been honoured, notably the promise to reduce economic burdens on the masses. The economics of the Interim Budget tally with the latest economic findings by the OECD, the ‘West’s leading think-tank’. Its December 2014 report has made a radical break with neo-liberal trickle-down economics. The Report identifies inequality not as an engine of growth but an enemy of growth: “Income inequality has a sizeable and statistically negative impact on growth….redistributive policies achieving greater equality in disposable income has no adverse growth consequences….” The Reports’ recommended solutions include “higher taxes on the rich and policies aimed at improving the lot of the bottom 40% of the population… Government transfers have an important role to play in guaranteeing that low-income households do not fall further back in the income distribution.”i The promise to restore democracy and rule of law will depend to a large extent on the 19th Amendment. Going by the available (unofficial) draft, the 19th Amendment, if passed and implemented (passed is not coterminous with implemented), will deepen and broaden democracy by de-concentrating power and instituting a system of absolutely necessary checks and balances. It will also help in the task of building/rebuilding institutions, many of which had been macerated and disembowelled by the Rajapaksas. But to get the 19th Amendment through, the government needs the support of the opposition. The government does not command even a simple majority in parliament. And the 19th Amendment cannot be passed without a two-thirds majority. Therefore, in the interests of creating the basic institutional and legal framework of good governance, the government must maintain a non-antagonistic relationship with the opposition. This would require a certain degree of give-and-take. And this give-and-take may well include not proceeding too fast on bringing many a corrupt member of the former regime to justice. The choice is unpalatable but unavoidable. To pass the 19th Amendment – without which good governance will remain a mere slogan – the government needs the support of around 40 to 50 members of the opposition. And several opposition members have indicated that a slow approach to justice is the price for their continued corporation in parliament. Therefore, if the 19th Amendment is to become a reality during the ‘100 Days’, justice for past crimes may have to be de-prioritised or deferred, at least for a while. Or else justice for past crimes can be prioritised and expedited, but only at the risk of the 19th Amendment. Given the current composition of the parliament, there is no happier way out of the conundrum. Far less explicable is the new government’s decision to continue with some of the more repressive policies of the Rajapaksas. Why renew the order giving police powers to the military? Why extend by two years a Rajapaksa law which allows the police to detain suspects for murder and other serious crimes sans a warrant for 48 hours? If the government has some valid reason for these decisions, they must be explained to the public. The Rajapaksas treated voters like juveniles. They did not think they owed the public the truth. The new government does. The Right to Information Act, even if it is passed, will remain a dead letter if the new government too believes in withholding necessary information from the public. The weekly press conference must not go back to being exercises in lies, half-truths and obfuscations. It is wrong; and it does not work. It will help none but the Rajapaksas. The consent of the people cannot be fossilised; it cannot be taken for granted. As VS Naipul warned, “Power came from the people…. As high a man could be taken up, so low when he lost power, he could be cast down”ii. Port City and future economics The controversy surrounding the real status of the Port City is illustrative of how controversial matters should not be handled. The UNP was strongly critical of the project, citing very valid financial, environmental and political reasons. Ranil Wickremesinghe publicly pledged to scrap the project. Early this month Minister Rajitha Senaratne said that the project will go ahead and that the Environment Assessment was properly done. Then the PM announced that a final decision is yet to be taken. Minister Kiriella told the media that the work on the project has come to a halt ‘automatically’. Anyone who goes past the Galle Face knows this is a lie, and a very inane one at that. In the meantime the Vice President of China Construction Communication Company (CCCC) Zhang Baozhong said that he had ‘nothing to worry’ about the Port City and that it will go ahead ‘for sure’iii. Is he aware of some ‘truth’ unknown to the Lankan public? Is that why despite the government’s assertion that the work has come to a halt, the work very obviously continues? Is China already sovereign in the Port City? There are so many unanswered questions about the Port City. Is it our version of the Guantanamo Bay? What is the nature of the Agreement between the Rajapaksas and the Chinese party? Which law will prevail in the piece of land leased to the CCCC for 99 years? Will it be Lankan law or Chinese law? If it is the latter, how is Colombo to prevent Beijing from using the land for military purposes? What will be the Indian reaction? Are we going to be the turf on which the two regional mammoths battle it out? What is the truth about the project? Is it environmentally sound or not? If the Port City is not bad enough to be scrapped, wouldn’t, shouldn’t some credit for this ‘not-really-bad’ project accrue to ex-President Rajapaksa? If the project has major flaws, and the government is unable to cancel it, the people must be told why. If the government fails to tell the truth to the people, it will do itself considerable discredit. Another potential danger is the proposed IMF bailout, probably an unavoidable measure, given the Rajapaksas’ financial depredations and their effect on the national economy. But this must not mean a return to the policies of austerity. Austerity, in a neo-liberal context, means nothing more than burdening the already overburdened bottom layers of society. The result is a slow but steady evaporation of the popular consensus necessary for democratic transformation - and a re-legitimisation of anti-democratic and racist ideas. Public opinion is not a monolith but a pendulum. And the ‘Jam-tomorrow’ economics of austerity can give the discredited cause of ethno-religious racism a new lease of life. The danger is particularly acute in Sri Lanka, where a National Socialist variety of anti-capitalism has had a strong historical presence. If the new government embraces austerity at the IMF’s urging, if it asks the poor and the middle classes to tighten their belts, again, the brand of anti-capitalism which blames all Sinhala woes on avaricious Tamil, Muslim and Christian capitalists would make a triumphant comeback. At its head we may see the familiar figure of Mahinda Rajapaksa. Footnotes http://www.theguardian.com/business/2014/dec/09/revealed-wealth-gap-oecd-report http://www.oecd.org/inclusive-growth/All-on-Board-Making-Inclusive-Growth-Happen.pdf 2 India: A Million Mutinies Now 3 http://colombogazette.com/2015/02/11/china-sure-port-city-will-continue/