Presidential candidate Gotabaya Rajapaksa’s supporters celebrating the dismissal of the case regarding his citizenship – Pic by Shehan Gunasekara
Gotabaya Rajapaksa, presidential candidate of the Podujana Peramuna, was able to hand in nomination papers for the Presidential Election by overcoming one legal hurdle. Though it has caused much excitement among his supporters, many people haven’t realised that Gotabaya’s legal problems do not end there.
Gotabaya’s legal question can be considered a comprehensive issue that does not end easily. He had been granted dual citizenship with extraordinary speed. Although the President had granted approval for his Sri Lankan citizenship, the proper procedure of applying for it had not been followed. It was confirmed that the Immigration and Emigration Department did not have the documents relating to his application. The President’s approval is only one aspect of the process of granting a dual citizenship. The process can only be legal if the other requirements of the relevant process had been fulfilled in accordance with the law.
It appears that the plaintiff did not know all the details pertaining to the issue, except some revelations made by the CID investigation. Although the documents related to Gota’s identity card were not available in the Department of Immigration and Emigration, the CID had found a log book relevant to the application which the plaintiff appears not to have been aware of.
The CID had found a copy of the application submitted by him, in which Gota had identified himself as a Computer Engineer. Gota’s first National Identity Card (491724021V) ceased to exist forthwith the receipt of the American Citizenship. Later, he had obtained a new identity card (19491721001) in 2016. Yet, he still used the old ID which is not valid, in enrolling his name in the electoral register for the years 2017, 2018 and 2019 and not the new identity card obtained in 2016. It does not appear that the plaintiff was aware of that.
In my view, no person who has been indicted by a Court of Law should be allowed to contest elections. It leads to corrupt the political system. It is very rare that we hear a person indicted handing nominations for a high office such as the presidency. This can be considered the first time such a thing had happened in Sri Lanka.
A person indicted will not be recruited to any post in the government, even for the lowest post, let alone a higher position. Moreover, in the event a person is indicted while in public service, there is a policy of suspending his service. If such stern action is taken against public servants who are indicted, how can it be justified to allow those indicted to contest elections?
If, however, the indictments issued are considered to have been based on the motives of political revenge, being a presidential hopeful, he should have urged the Judiciary to hear the cases soon and expedite the process of concluding them so that he could have established his innocence before the Presidential Election. Inevitably, the precedence of this nature will add a black spot, a stigma to the electoral system of Sri Lanka.
Whoever wins the Presidential Election, it will not be the solution to the crisis Sri Lanka is facing, except that the victory of the candidate will give a positive boost to the party that he represents at the General Election.
The crisis of Sri Lanka
Sri Lanka should have gone for a profound change in its corrupt, sadistic and ugly system soon after ending the internal civil war. By that time, the social system had reached a state of almost collapse and complete distortion.
The State and its institutional system had become corrupt and inefficient to the highest degree. The leader who won the internal war and the Government led by him failed to realise that Sri Lanka could not move forward, even a step further, without structural reforms to make a profound change in the ugly face of the State and the social system. As a result, the country was plunged into a greater crisis than what prevailed when Prabhakaran was alive.
It was this situation that eventually caused the defeat of the Rajapaksa regime. The Yahapalana Government, which replaced the Rajapaksa regime too, wasted its time on false reforms rather than introducing positive reforms needed to pull the country out of the crisis. Consequently, the crisis became worse.
Neither the Presidential Election nor the Parliamentary Election will be the solution to this crisis. The crisis the country is facing is so huge and complex that it could be solved only by orientating the country towards a comprehensive program of structural reforms which would help bring about a complete change in the entire system which is in a sordid state of degeneration.
One of the main objectives of the proposed reform program should be to build the nation. The other important objective should be to recreate the State and its institutional system which has plunged into degeneration with rampant corruption.
Nation building is an essential condition for the survival and wellbeing of the modern nation state. A country that had long been under the grip of colonialism must necessarily build the modern nation in the process of gaining independence.
India fulfilled this historic need in achieving independence. But Sri Lanka cannot be regarded as a country which gained independence with much effort. The independence gained by Sri Lanka was more a gift than an outcome of a great struggle. Therefore, there was no need to build a modern nation for the purpose of achieving independence. So much so, even after gaining independence, there was no effort made for building the nation.
Nation building implies promoting social integration by abolishing discriminatory practices based on ethnicity, caste and creed, and ensuring equal respect, human dignity and rights of everyone so that there won’t be space for arising of violent clashes associated with such divisions. It was because of these divisions that Sri Lanka became a country of persistent blood shed on a large scale with violent conflicts that lasted for a very long period of 30 years.
The uncivilised atmosphere that prevailed for a long time due to violent conflicts did not stop at confusing and distorting the social system, rather it went further by corrupting and distorting the State itself and its system of institutions.
However, no measures were taken to introduce structural reforms following the victory of the internal war to regularise and streamline the degenerated social system and the State; and also to eliminate the distortions and decline set in the State and the society which eventually resulted in expediting the process of degeneration of the social system and the State and accelerating its collapse with a renewed momentum.
Missing the opportunity
If the Government had gone for adopting structural reforms to re-create the society and the State immediately after the victory of the internal war, the story of Sri Lanka would have been much different and taken a different turn.
If it had been done, listening to the grievances of Tamils which are in a bulldozed state now and also listening to the genuine grievances of others as well, a conducive background for building of the Sri Lankan nation could have been created avoiding the clashes associated with ethnicity, caste and religion. The failure to do so has resulted in surfacing the Sinhala-Muslim rift while that of Sinhalese-Tamil has been temporarily subdued.
The ideological platform for this had been prepared in a manner that promoted contempt and hatred in the psyche of the Sinhalese community against Muslims. It seems that the Sinhalese people were inclined to accept and some of them to react to the fictitious rumours spread in this regard, unscrupulously and without verification.
The first big explosion in this regard occurred in June 2014 in Aluthgama and Beruwala. Four Muslim men were killed in the attacks and the Muslims suffered immense property damage. The second major explosion occurred in Digana, Kandy. Two people were killed and Muslims suffered massive property damage there also.
Sri Lanka felt the effects of the horrific Muslim terrorism for the first time when the number of Catholic churches and tourist hotels came under suicide attacks on Easter Sunday. Although the Catholic Church was able to avoid a catastrophic conflict between the Catholics and the Muslims in the aftermath of this tragedy, it however led to heighten the animosity between the Sinhala and Muslim people to the maximum.
Despite the attacks launched in Chilaw spreading to several places in the North Western Province, the Sinhala society at large did not allow it to become a country-wide phenomenon. This indicates that the country’s crisis has caused some change, for the better, in the imagination of the Sinhala community.
The society is now gripped in a state of chaos where ethnicity, caste and creed can lead to explosive situations at any moment. The recent clash between the Buddhists and the Hindus that occurred in connection with the cremation of the Chief Incumbent of the Gurakande temple in the last week of September is a good example of this situation. This temple is located in the premise of the Pullayar Kovil, a famous kovil in Mullaitivu. The temple had been built during the war. Usually, cremations are not made in Kovil premises.
When the funeral of the Chief Incumbent of the Gurakande temple was being arranged to be held in the temple premises, the authorities of the kovil had obtained a Court order to prevent it being held there. The Court had specified a suitable alternate ground for the funeral of the chief incumbent in a place nearby. The dispute was led by Ven. Galagoda Aththe Gnanasara Thera and a group of Buddhist monks from the south who had gone there. The cremation was held in a selected place in the kovil premises by the monks in violation of the order issued by the Court. Two Tamil youths, including an Attorney-at-Law, were assaulted when they tried to stop the cremation there, showing the order issued by the Court.
The Police too had acted on the orders given by the Gnanasara Thera and not on the order issued by the Court. In this instance, not only Gnanasara Thero, but also the Police had acted ignoring the Court order. The extent of the anarchic situation prevails in the country can be imagined from this incident.
By some misfortune, had the Tamil people intervened actively in this incident, it would have ended in a great tragedy. The lawyers of the north abstained from working in the Court for four days to protest this act. They gave up their strike only after the Attorney General had intervened and assured them that he would see to it and justice would be done.
Degeneration of the State
The country should move towards finding an expedient solution to the chaotic situation in the social system considering it a matter of paramount importance to be resolved quickly rather than letting it stagnate any longer. At the same time, it is also necessary to understand that the State is in a pathetic condition, replete with rampant corruption and degeneration at a maximum level. This is one of the major issues that Sri Lanka needs to address in advance.
The extent of degeneration and collapse of the State can also be understood through the recent trial of Gotabaya in regard to his dual citizenship. When the petition was called for hearing, Nerin Pulle, the Deputy Solicitor General at the Attorney General’s Department who appeared for the Controller of Immigration and Emigration said that the application and the documents relating to Gotabaya Rajapaksa’s passport were not in possession of the Immigration and Emigration Department.
The state of confusion and corruption of the Department of Immigration and Emigration, which is considered to be an important institution as far as national security is concerned, can be realised to some extent from this incident.
Now the passports are issued by the Department of Immigration and Emigration under a new computer system which is claimed to be free of fraud or cheating of any sort. Previously, it was essential to produce a certificate from the Grama Niladhari and a photograph of the applicant certifying his or her identity. The new system does not require certificates as such. All documents submitted to obtain a passport are returned to the applicant.
By introducing this new system, it can be said that the Department of Immigration and Emigration has removed all controls which were in effect under the old system to prevent the issue of fake passports. There is clear evidence to show that fake IDs have been issued even after switching over to a new computer system
This is not a situation confined only to the Department of Immigration and Emigration. It can be considered a common feature inherent in all major revenue agencies of the Government.
The offence and its causes
I’m not a computer expert. But I am sure that no one can cheat the computer without being detected. Frauds and cheats committed through a computer or a computer system can be traced easily by an audit of the computer or the computer system.
Despite the availability of internationally recognised mass-produced readymade computer systems capable of being used in almost every sphere of industry which can be easily adjusted to meet the specific requirements and be used leaving no room at all for forgery and corrupt practices, the Government institutions in Sri Lanka still tend to use the computer systems which are tailor-made by some companies.
The cost incurred in the purchase of tailor-made systems is evidently much greater than the cost incurred in purchasing a most developed and sophisticated computer system from the international market. Most of the heads of departments, under the pretext of having tailor-made computer systems to suit specific needs of their institutions, have got computer systems exclusively made for their requirement ostensibly to achieve their corrupt interests.
Some companies engaged in production and distribution of various products such as John Keells, which runs a large network of supermarkets across the country with multiple business activities, uses only one central software package developed by SAP, the dominant global ERP, the enterprise resource planning software vendor.
One can get information about sales, purchases, inventories, profits and losses, etc. of all outlets and branches at anytime from the computer centre. It can easily detect if something goes wrong. Computer systems run by major private sector companies are very efficient. There is hardly any room, almost nil, for someone to cheat or change their data systems. But the computer systems in government institutions that generate huge revenue are ineffective and corrupt.
This error in the computer systems and software packages used in the Government institutions which generate large sums of revenue can be easily detected and identified by conducting an audit of the computer system itself. It is also possible to identify the officers responsible for corruption and fraud.
Further it is possible to improve the revenue of the Government substantially by punishing the wrongdoers severely and changing the current computer system and replacing it with a foolproof system that cannot be tamped with. In doing so, it will be possible to minimise the extent of corruption in the Government institutions and make the performance of such activities more efficient.
Overcoming the failure
The Sri Lankan State is in a dire state of inefficiency, rampant corruption and dismal failure. Structural reforms that will bring about a profound change in this situation would be possible only if the country could be orientated to deliberate on a detailed analysis of the functioning of the entire system of the State.
First of all, it is essential to look into the conduct and operations of the Legislature, the Executive, the Judiciary and the system of institutions that collects tax revenue to the government. Further, it is necessary to look into the spheres of education, health, passenger transport, energy, waste management and the environment as well.
But the Parliament lacks the ability to spearhead such a comprehensive reforms program. Sadly, the Parliament is in a state in which it has lost its proper sense and become extremely corrupt and inefficient.
It is only through the orientation of the country for adopting a people’s constitution that a program for a complete transformation can be successfully initiated. Most people in Sri Lanka do not know what is meant by and what constitutes a people’s constitution or making of a participatory constitution. It can be regarded as an accepted and systematic way of changing the whole system of a country.
It is the people and not the Members of Parliament that can be considered the leading authority of such a program.The objective of a people’s constitution would be to make a change in the entire system rather than limiting its scope into the purpose of drafting a constitution only.