By Dharisha Bastians
In September 2012, the Sri Lankan Government proposed new legislation that sought to centralize funds allocated for rural development and poverty alleviation programmes. The bill shrouds massive public monies in virtually impenetrable secrecy and concentrates power in the hands of a single Minister regulating the funds. Casting public accountability and legislative procedure aside, the Sri Lankan state continues to do its business in opaque ways, gagging Government officials and disbursing funds arbitrarily. Somehow, a trend towards greater transparency that is sweeping across the world appears to have completely bypassed a small island nation in the Indian Ocean.
The bill seems innocuous enough at first glance.
Divi Neguma, (uplifting lives) is to be a single Government department tasked with developing poverty alleviation programmes, with a whopping Rs. 80 billion worth of funds at its disposal. Apart from accountability concerns, the draft legislation to set up the Department of Divi Neguma Development has created an unprecedented battle of wills between the executive and judicial branches of the state and representatives of the Tamil community charge that it delivers a death-blow to a potential power-sharing mechanism with the people of the North and East.
The bill seeks to transfer powers devolved to the provinces through the 13th Amendment, back to the centre and into the hands of one of the country’s most powerful Ministers. Quasi-federal in nature, the 13th Amendment to the constitution, designed by New Delhi to resolve the separatist conflict in the island, devolved some powers to councils manned by provincial representatives, including education, health, housing and rural development. In the post-war reconciliation discourse, the provincial council system set up by the 13th Amendment was to be the basis of a permanent power-sharing arrangement with the minority Tamil community.
But that was before the Supreme Court shot down the Divi Neguma Bill, insisting that it be ratified by all nine provincial councils in the country before it could be enacted. Infuriated by the blockade, especially in light of an un-constituted provincial government in the formerly embattled North, the Government threatened to repeal the 13th Amendment altogether to get its way on the proposed legislation.
The same day that the Court delivered its second determination on the bill to the Speaker of Parliament, the ruling coalition also initiated impeachment proceedings against Chief Justice Shirani Bandaranayake. The move is seen as politically motivated retaliation against the Chief Justice’s unfavourable rulings towards the incumbent administration, culminating in the Divi Neguma determination.
And while the politico-judicial fallout has dominated debate about the bill, the proposed legislation promises to be equally damaging to the fundamental tenets of public accountability and transparency.
The Divi Neguma legislation proposes the amalgamation of several regional development authorities, including the poverty relief programme called the Samurdhi Authority of Sri Lanka, to form a single body called the Department of Divineguma Development. The Department will centralize development funds under the umbrella of the Economic Development Ministry, headed by Basil Rajapaksa. The fund will operate outside the Consolidated Fund which is subject to parliamentary oversight mechanisms. The bill also establishes micro-finance lending institutions that will not be registered and regulated by the Monetary Board of the Central Bank. The entire Divi Neguma financial system will be controlled by the Minister of Economic Development, and will function outside the ambit of Parliament.
In fact, Constitutional lawyer and former Transparency International (Sri Lanka) Executive Director J.C. Weliamuna in arguing for a petitioner challenging the Divi Neguma Bill argues that with the Minister being the creator and regulator of the banking system, the concept of accountability would be completely lost. Essentially, given that the banking system caters to the poorest in the country, the Minister would have carte blanche with their private monies, the anti-corruption activist argued in court.
Serious concerns have also been raised by the bill’s secrecy clause prohibiting officers of the Divi Neguma Department from divulging information except by court order. The punishment for revealing Department secrets is incarceration and heavy fines. Usually reserved for legislation and institutions dealing with matters of national security, the inclusion of the secrecy clause in the Divi Neguma legislation is significant, critics say, given the massive monies under the sole purview of the Department it sets up. Naturally it also strikes at the very heart of the Freedom of Information principle. If anything, given that the money is in the Department’s custody, transparency should be more important than ever.
Member of the Committee on Public Enterprises (COPE), a parliamentary oversight committee, Eran Wickremaratne said the secrecy clause smacks of an attempt to silence individuals who may decide to speak out against corruption and mismanagement. “It runs contrary to the prevailing sentiment in every democracy, for greater transparency. In fact, Divi Neguma makes the struggle for freedom of information laws harder by erecting a legal barrier to the dissemination of information,” the Opposition Lawmaker said.
The Government disagrees.
It argues that the legislation will result in better coordination and effective implementation of poverty alleviation programmes. It claims the secrecy clause in the bill aims to protect private information pertaining to Samurdhi beneficiaries, the poorest of the nation’s poor.
Interestingly, the discussion about Divi Neguma’s distressing lack of accountability comes in the wake of a decision by the World Bank to cease funding for two major oversight committees in the Sri Lankan parliament, due to the lack of progress by the Government in developing transparency and accountability mechanisms. Unfortunately as far as the ruling administration is concerned, accountability is simply not a priority.
The fundamental role of parliament is to make laws and preside over public accounts. The latter legislative function imposes checks and balances on what would otherwise be the untrammelled spending power of the executive. Allowing one of the largest state funds to operate outside parliamentary control undermines the legislature and creates unnecessary space for unbridled corruption and financial irregularity. Disturbingly, Sri Lanka also remains a slow mover on transparency issues, being the only country in the region not to have enacted Freedom of Information laws. Even in bureaucratic and rampantly corrupt India and Bangladesh, citizens bear the legal right to question their elected representatives on issues ranging from weapons procurement to local government contracts to build a ditch. Whistleblower protection and right to information laws might be all the rage, but these concepts find no favour with local politicians – naturally – because an empowered population would be less likely to tolerate a corrupt system.
Still, human beings do not inherently yearn for autocracy and the erosion of liberty, economic or civil. Like water running downstream, people cry out for greater freedoms and more responsibility from their leaders. One day the cry for change may well prove too loud to be ignored. Dictators and corrupt regimes may be crumbling throughout the world, but this is a lesson that Sri Lanka’s rulers refuse to learn.