Reboot Sri Lanka, a dire need for a complete ‘system change’

For any ‘system change’ to be widely accepted, such new system ought to be able to adequately address prevalent public outcry and resolve disparities which are commonly seen from the demands at the ‘Aragalaya’ across the island

The word ‘manifesto’ traces its roots to the Latin ‘manifestum’, which means clear or conspicuous and presently defined as a document publicly declaring a set of ideas, opinions or views or the intention, position, program or plan of action of its issuer. Yet, it is understandable that the word ‘manifesto’ tends to have more disliking than not because the word has taken a beating over the decades in Sri Lanka.   

Main causative factors for such repulsion towards ‘manifesto’ are undeniably associated with (a) blatant and repeated breaches of covenants and promises therein or non-delivery by respective political parties over many decades and (b) inherent legal barriers to hold those issuers of party manifestos, accountable for such misdeeds.   

Individual Service Plan (ISP) – the ‘mini manifesto’

The physical act of writing your own manifesto on an actual page with an actual pen could be symbolically powerful. No doubt, as you press the words on the paper, they are naturally pressed into your mind as well!

In ancient Israel, the kings were required to write their own copy of the laws down. The core purpose being in any situation, whilst holding a public office, regardless of how difficult it may be, public officer should exhibit strength and control. Such officer ought to display the courage to stand steadfast in his principles for making just and righteous decisions, even in the face of impossible circumstances.

The unique concept of Individual Service Plan (ISP) by Citizens for Accountable Governance (CAG) provides an opportunity for future political contestant to reach out to his or her potential voters and prepare his or her action plan for delivery during his or her political tenure to that constituency, once elected. Wider participation of voters and non-voters alike, in preparation of this mini-manifesto (ISP) would warrant obtaining and delivery of public services which majority of people are commonly interested, unlike in the past. 

One might see this process is somewhat akin to ‘primary election’ in the USA, whereby, in case of a particular political party, the people in respective constituency take over the power of nomination of the candidate from party leaders and influence the latter who they are willing to vote in, as the most suitable and credible candidate. 

In Sri Lanka, customary internal selection of candidates by a party body and direct nomination by the party leader, without any personal accountability obligations towards constituents, has evidently proven an utter failure. At most such so-called people’s representatives had become mere lip-servers. Hence diminished confidence in politicians, here as a class. On that basis, repetitive assignment of their power by the people as repositories of sovereignty, to be exercised by their representatives in good faith, through the Public Trust Doctrine seems unlikely, at least in the foreseeable future. If so, how could we transform this CAG concept into a fresh start? 

Foundation for a ‘system change’

For any ‘system change’ to be widely accepted, such new system ought to be able to adequately address prevalent public outcry and resolve disparities which are commonly seen from the demands at the ‘Aragalaya’ across the island. That has to be via the empowerment of the people as stakeholders and by restoring accountability at every level. We see no rational escape therefrom! 

For restoration of current next to nothing voter confidence and for establishment of accountability, as a foundation, CAG introduces a contractual scheme which replaces the habitual lip-service. Accordingly, the contestant voluntarily and irrevocably agrees to be held legally accountable and to comply with predefined annual administrative cycle. This entails submission of acceptable Individual Service Plan (ISP) as a mini-manifesto, submitting to implement the Master Plan, covenanting to comply with reporting obligations, progress reviews, transparency and conflicts of interest checks including key performance indicators and voter satisfaction surveys etc. and continuous rating scheme of respective individual by voters based on his performance, as promised. 

Many minds susceptible to prevailed political culture would obviously question, why should any existing politicians with VVIP status ever enter into such legal obligations with voters? The paradigm shift emerging would either operate as a deterrent to such self-inflicted individuals or would open up plethora of opportunities to a new, capable and credible generation of politicians who are keen to be held accountable but nevertheless would not have contemplated to become one, in the prevailed shunned political climate in Sri Lanka for many decades. 

In a revolutionary Sri Lanka, as part of this solution, a voter could communicate through online or mobile application and obtain services through same media or kiosks so that corruption could be minimised by lesser face-to-face interactions with public officers including politicians. Minimising face-to-face interactions with public officers was also recommended by the United Nations Convention against Corruption.   

    

Master Plan (30-year National Policy)

There can be no denial that Sri Lanka is in the brink of total collapse economically, politically and socially. That is due to no fault of majority of her citizens. The substantive failure of the governance structure, wide-scale corruption, mismanagement and abuse of processes by many members of the public sector and political apparatus should no doubt be held responsible for this near bankrupt status quo of Sri Lanka.   

Prevailing economic crisis in Sri Lanka is spiralling into a humanitarian catastrophe as millions of innocent people face acute shortages of many basic necessities like food, fuel, cooking gas, transportation, electricity and medicine, etc. Furthermore, the household economy and food security of the most vulnerable people have been directly impacted owing to sharp declines in agriculture production which resulted in rapid price increase for staple food items like rice, flour, fruit and vegetable. Combination of all have brought Sri Lanka to almost a grinding halt.

It must be said that the absence of a long-term fixed national policy and leaving the whole fate of the country in the hands of each political regime comes into power every five years, so that they could find fresh conjured up promises at the next election, had brought this wonderful country to this misery.  

For citizens what only remains now is to believe and react like what late Nelson Mandela said ‘in order to build our nation, we must all exceed our own expectations’ and trust that ‘everyone can rise above their circumstances and achieve success if they are dedicated to and passionate about what they do’. 

In that context, a key part of the solution that CAG presents, is the 30-year Master Plan (‘Applicable Policy’) encompassing all such exceeded expectations of our nation-building exercise but compositely and pragmatically structured by way of 25 public policies under 25 ministries, extensive constitutional and legal reforms etc. for a fresh start in Sri Lanka, so that same mistakes shall never be repeated. Accordingly, anyone including a foreign investor could look at the revolving Master Plan and determine the country’s destination and prospects and security for his potential investments. Stronger constitutional protection with mandatory referendum is recommended to prevent future political regimes deviating from the core mission.      

It is common ground that Sri Lanka must swiftly attract substantial foreign direct investments (FDI) and local investments into both production and service sectors whilst optimising existing industries. Transform all burdensome state-owned enterprises (SOE) ideally to public quoted companies and to downsize the state sector consists of over 1.7 million government employees perhaps by offering feasible equity ownership in SOEs in lieu of compensation, would be higher in the national agenda. 

For future Sri Lanka much emphasis ought to be given for high quality education, research and development, tech-based agriculture and other industries, IT and AI based industries, renewable energy generation, enhancement of geo-strategic services, other service sector advancement in tourism, healthcare, value addition services and international arbitration etc.

The main focus of the CAG Master Plan is to swiftly gain a healthy position and constantly progress in the global Ease of Doing Business Index, which typically ranks a nation on the index based on following average of 10 sub-indices:

1. Starting a business – Procedures, time, cost, and minimum capital to open a new business

2. Dealing with construction permits – Procedures, time, and cost to build a warehouse

3. Getting electricity – procedures, time, and cost required for a business to obtain a permanent electricity connection for a newly constructed warehouse

4. Registering property – Procedures, time, and cost to register commercial real estate

5. Getting credit – Strength of legal rights index, depth of credit information index

6. Protecting investors – Indices on the extent of disclosure, the extent of director liability, and ease of shareholder suits

7. Paying taxes – Number of taxes paid, hours per year spent preparing tax returns, and total tax payable as a share of gross profit

8.Trading across borders – Number of documents, cost, and time necessary to export and import 

9. Enforcing contracts – Procedures, time, and cost to enforce a debt contract

10. Resolving insolvency – The time, cost and recovery rate (%) under a bankruptcy proceedings1 

In addition the CAG Master Plan addresses many aspects of the business environment that matter to firms or investors such as the macro-economic conditions, the level of employment, education, healthcare, social welfare, environmental protection, corruption, stability, poverty indices, the strengths and weaknesses of local and global financial system and regulatory requirements including necessary deregulation, other types of regulation such as financial market, environment, and intellectual property regulations that are relevant for the private sector and State sector. 

Nevertheless, CAG wishes to reach consensus with all stakeholders in formulating the final Master Plan as a technocratic body and conversion of the same into the national policy would be carried out by the State through necessary constitutional reforms. Other aspects of the CAG Master Plan were aptly discussed in the previous article titled ‘Sri Lanka needs 30-year master plan for economic prosperity and sustainable development’ (published in Daily FT under Issues/Opinion at page 12 on 21 June 2022). 

Key vitality for Sri Lanka for her ideal fresh start, is to implement such a National Policy forthwith. For that, the prospective signatory of the CAG scheme shall irrevocably covenant for implementation of the same. Furthermore, such obligation includes recalling or resignation from office, if failed to support implementation of the national policy.      

CAG Trust

Needless to say that corruption in Sri Lanka is rampant and another biggest public outcry being sheer gaining of ill-wealth through shady deals and immoral practices by politicians and public officers at every strata. 

The specific legal provisions of the Declaration of Assets and Liabilities Act No. 01 of 1975 (as amended by Act No. 74 of 1988) have been repeatedly flouted by both offender public officers and the very appropriate authorities entrusted for enforcement. The ‘appropriate authority’ being the Attorney-General, the Bribery Commissioner, the Commissioner General of Inland Revenue, the Head of the Department of Exchange Control or the Principal Collector of Customs. 

The legislature has clearly intended through the said Act inter alia to compel certain specified categories of persons to make periodic declarations of their assets and liabilities in and outside Sri Lanka and to provide for: 

(a) investigations to be conducted; 

(b)  penalties for non-declaration of assets and liabilities; and 

(c)  penalising for false declarations. 

Bizarrely, the same legislative scheme evidently operates even more than subtle bias, leaving the repositories of sovereignty, the people virtually helpless. Have you ever heard of any undeclared property vested in the State upon such conviction, in pursuance of specific provisions in the Act since 1975? Perhaps no convictions, because we don’t know what happens behind closed doors!

In such attending circumstances, CAG facilitates any future candidate or public officer to prove his or her credibility and accountability by voluntarily executing a trust deed whereby irrevocably vesting all undeclared assets to the CAG trust, during the candidacy and tenure of holding any public office. 

The CAG Trust is for exclusive benefit of the public and governed by independent board of trustees and the Public Trustee acts as the custodian trustee. This provides independent board of trustees unfettered authority for accessing, sourcing worldwide assets and disclosing assets to the public for maintaining transparency and integrity of such public officer. 

Voters now on could demand as to why any politician or public officer should hesitate to prove his or her credibility to the people, if his or her intention truly is to provide a yeomen or faithful service? Through that process the CAG scheme would invariably pave a clear way for many credible and transparent individuals who were loathed to come forward so far, to genuinely play a meaningful role in nation building mission before us.

Public Assembly (‘Technocracy’)

Closer analysis of the modus operandi of the entire governance structure vis-à-vis the executive, legislature and judiciary over many decades, the main contributory factor had been the sheer impunity exercised unduly. Fortunately, current democratic revolution; the ‘Aragalaya’ seems to have changed that mindset of the masses to not be at the receiving end of such impunity anymore. Thus, a solution must be found swiftly to put all parties in the correct track.

In this process, archaic political ideologies and theories might not serve much purpose and demands out-of-the-box and novel thinking. Hence, it is the view of CAG that the concept of ‘Public Assembly’ (‘Technocracy’) must be introduced through constitutional reforms, as the Fourth (4th) Pillar to a true democracy. 

It is suggested that said ‘Public Assembly’ be a non-political body ensures the due functionality of the entire regulatory mechanisms of the country by bringing all regulatory bodies within its purview with ample statutory authority to: 

(a)  hold public inquiries 

(b)  make directions to the executive, legislature or respective regulatory body for: 

compliance, 

take appropriate action against contraventions, or effecting enforcement, or 

(c)  to obtain appropriate orders from respective courts. 

Due to the existing anomaly by placing each regulatory body within the purview of the respective subject minister while simultaneously placing those state institutions which collectively supposed to be the executors of statutory obligations, without leaving any functional independence to the regulatory apparatus, had failed to serve their very purpose. Regretful outcome is the total lack of confidence in many systems in place. 

Therefore, it is suggested that the Public Assembly should constitute with 25 non-political experts as technocrats to operate akin to unofficial shadow ministers. Depending on the area of expertise, each member be entrusted to oversee the implementation of respective national policy under the Master Plan. 

Broader consensus could be reached on simplified procedure for electing members to the Public Assembly and how to safeguard aspirations of the people. Potential nepotism and cronyism in the Public Assembly and the public sector could be curtailed by statutorily preventing any harmonisation of its official tenure with respective legislative tenure. 

Much needed checks and balances of the governance could be achieved by bringing the Public Assembly also within the writ jurisdiction, so that members too could be held accountable and recalled or removed, when failed to deliver. 

Law reforms to restore accountability and confidence

The foundation of administrative law in Sri Lanka is to keep the powers of government within their legal bounds whereby protecting her citizens against their abuse, exercise of judicial power of people and to uphold the rule of law. Accordingly, public authorities should exercise their powers within the four corners of the legislation through which they derived such statutory authority. 

One legal recourse challenging the discretionary power of public authorities and against infringement or imminent infringement of such rights expressly stated in the Constitution by executive or administrative action is via invoking fundamental rights jurisdiction of the Supreme Court of Sri Lanka.   

Whereas the writ jurisdiction which is regulated by the Constitution is, broadly speaking, invoked to control the power of the statutory bodies, which discharge duties of public nature. We find the origins of ‘Prerogative Writs’ in English common law. Aggrieved party (or a public-spirited citizen) seeking for the issue of prerogative writ essentially pleads to: 

a). quash executive or administrative decision based on its illegality, irrationality, disproportionality, breach of legitimate expectation or acting in excess of authority (ultra vires) by way of writ of certiorari; 

b). order compelling public authorities to perform their statutory obligations by way of writ of mandamus; 

c). order restraining the conduct in violation of statutory provisions by way of writ of prohibition; or 

b). order challenging the authority to exercise power or hold office by way of writ of quo warranto, etc. 

Interesting to note the judicial observation of the Supreme Court that ‘the fact that our Constitution expressly refers to these writs by their ancient names shows that our Constitution makers intended to preserve the beneficial characteristics of these ancient remedies, which possess the inherent character and virility to be able to change to suit changing circumstances and needs’ (by Marsoof PC, J. in J. S. Dominic vs. Minister of Lands & Others SC Appeal No. 83/08, S.C. Minutes dated 07.12.2010).

Nevertheless, very pertinent questions at this critical juncture are: 

a) whether such boastful jurisprudence inherited and developed over decades in Sri Lanka, had instilled greater confidence or rather brought about any substantial benefits to the citizenry including the vitally important contributors to Sri Lankan economy? and 

b) had decades long exercising of legislative and judicial power of the people in fact safeguarded either 

i. due performance of their statutory obligations by the public sector or 

ii. established good, effective and accountable governance in Sri Lanka? 

Regretfully answers seem quite wavering. First, many aggrieved parties instead became victims of corrupt and crooked practices, as they were rather loathed to seek such legal remedies when the existing system often failed to uphold the rule of law. 

Secondly, vast majority either withdrew or refrained from doing business and other activities in Sri Lanka when their available options i.e. whether to fight for their statutory rights or against such denials, became impractical and non-viable amidst sheer disregard to the rule of law by their opponents including public officers. 

Thirdly, the remainder ended up with nothing but frustration even though their rights have been often denied either through violation of statutory obligations or acting in excess of statutory authority by public officers including some in the legal machinery.   

Undeniably the ground reality demands drastic changes to the entire legal system and governance structure forthwith to restore public and investor confidence. Yet everything that needs to be done will be unpopular, because many will be at the receiving end. In the common parlance it is like going for open heart surgery because no preventive care was exercised! 

However, it could be achieved by establishing a simplified, efficient and credible system through extensive legal reforms. In that context, CAG proposes through its Master Plan, for:

(a)  simplification of the entire legal system through nomenclature, updating of all archaic laws, upgrading to more pragmatic simplified systems and procedures through introducing pre-action protocols etc. and converting complicated pleadings into simplified forms etc. so that the legal process would be no longer a rocket science to the general public, as was done elsewhere like in England & Wales through Lord Woolf reforms in 1998; 

(b)  implementation of firm procedures through regulations including strict time-tables associated with mandatory cost orders and sanctions so that all professionals and public officers could be held accountable for their respective services rendered or expected to render; 

(c)  introducing procedures for continuous professional developments; 

(d)  streamlining both civil and criminal procedures for expeditious dispensation of justice;

(e)  to create a regulatory framework so that all professionals and public officers must act competently to maintain their annual practicing certificates associated with mandatory professional indemnity insurance cover for vindicating those affected due to negligence; 

(f)  introducing a simplified tax scheme applicable to all over 18 years which shall be linked via unique national insurance number; 

(g)  potentially dividing the Attorney General’s Department to advisory and litigation divisions and compelling the Attorney General to become amicus curiae (impartial advisor to court) in all judicial review and fundamental rights applications etc. so that Attorney General’s primary obligation to act in the best interests of the general public would be safeguarded; and 

(h)  seeking for public consensus for potentially introducing an accreditation scheme for the judiciary when their judgments or orders been upheld in appeal or revision while having negative impacts when set aside or revised, since such scheme would likely to induce the judiciary to act meticulously when delivering orders and judgments, etc.

No doubt credibility and confidence would be restored when the public and investors witness that all are accountable under one uniformed system! 

Direct democracy and right to recall

The current political and constitutional crisis, no doubt resonated all alarm bells! The inevitable question is what is the purpose of inalienability of sovereignty reposed in the people, if their so-called public trustees readily breach the trust bestowed upon them? The ‘Aragalaya’ theme by and large is no faith in many of their representatives and all must go! Essentially lamenting that the people do not have a say in between exercising their franchise. Isn’t that very pertinent in a set up so-called a democracy? Is the current chaos due to that bedrock being shattered?  

CAG therefore proposes through its Master Plan for the introduction of a direct democratic feature through constitutional reforms so that interim public policy implementation be facilitated, as and when demanded by the people through secure digital public petition platform. Adequate statutory provisions could be made so that once such digital public petition is submitted with required thresholds for example minimum number of requisitions, such bill must necessarily be debated in Parliament. This process would certainly assist the people exercising their rights to recall their representatives in between elections, which is another feature included in the CAG Master Plan.

Anti-corruption and good governance treaty obligations 

Sri Lanka, as a qua state has an obligation both under international and domestic law to give effect, inter alia, to the United Nations Convention against Corruption (‘UNCAC Convention’) which it signed on 15/03/2004 and ratified on 31/03/2004. Article 5 of the UNCAC Convention deals with ‘Preventive Anti-Corruption Policies and Practices’ and Article 5(1) states that ‘Each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.’ 

As per the Public Trust Doctrine, since people are the repositories of sovereignty, the entrusted power should be exercised by the government in good faith for the benefit of the people. Consequently, people have an entrenched right to freedom from corruption in any shape or form. Hence, CAG has incorporated many of key recommendations for those objectives including promoting corporate integrity into CAG formal contracts and the Master Plan for implementation forthwith. 

Finally, it must be emphasised that ‘the first and most important component in nation building is law as it is the source of national cohesion’ (Myles Munroe).

Citizens for Accountable Governance (‘CAG’) 

CAG was formed in 2018 and launched in 2019 with the motto of ‘I am Accountable’ headed by a board of directors and independent board of governance, independent board of trustees as a non-partisan, non-profit advocacy legal entity, governed by its objectives, vision and mission as declared publicly including without limitation to operate as a pressure group, a non-governmental entity promoting public accountability and transparency in all forms of public office subsisting on public funds within the Republic of Sri Lanka. All responsible citizens are welcome to join for this common cause. Those who are interested in joining or sharing your feedback please address to [email protected] or visit www.caglk.org. 

CAG is inspired and motivated by what late Nelson Mandela said an ‘action without vision is only passing time, vision without action is merely day dreaming, but vision with action can change the world’. Wherefore, let us all rebuild this wonderful nation through collectiveness. 

Footnote:

1https://en.wikipedia.org/wiki/Ease_of_doing_business_index

(The writer holds an LLM (London) and is an Attorney-at-Law/Lawyer (England & Wales)/Chairman, Citizens for Accountable Governance (CAG).)