New asses, same liquors

January

13, 2015
This column is not about donkeys. Its not even about the indigenous
Mannar species we have on this once, late lamented, Wonder of Asia.
Neither is it about alcohol. Not even about exotic beverages that were
served, until recently, at the highest level Johnny Walker Blue Label or
Chivas Regal we have heard, of Mathata Thitha fame. Nor is it about the
more mundane ethanol and the related moonshine a.k.a. the common or
garden kassippu, which is the source of many a politicians unaccountable
wealth, busted up on elections to subvert the voters democratic choice.
For the reader to appreciate the true meaning of the headline, New asses,
same liquors, I will repeat an apocryphal story (well-known, but probably
not true).

Sir John Kotalawela and Solomon Bandaranaike once met, in that land
beyond the living, where all of us living souls would one day have to hasten
to, as definitely as night follows day (some overwhelmed by power some
forget this!). The old propagandists, successive Prime Ministers no less,
were exchanging reminisces of old times when they were sparring each
other in that arena which was recently described as a circus by Salman
Khans accompanying act Jacqueline Fernandez. I hope readers would have

read play write Ruwanthi de Chickeras succinct and cutting response to

that comment. But that is by the way.

When Solly and John met, John made a comment in his salty language, for
which he was renowned and reviled in equal parts: Banda, what irritated
me the most was seeing the same bunch of corrupt bum-suckers who were
hovering around my ministers like a bunch of bluebottle flies around fresh
dung just done excreta (as the trackers at Yala would succinctly describe
the item in question when it has emanated from a pachyderm, as substitute
for the animal itself not showing up), also hovering around your ministers,
after you won and we were thrown out.
Bandaranaike pondered over Sir Johns comment for a few minutes,
massaging his lower jaw (as was his wont) and after emanating a puff of
smoke, pulling out his pipe, and replied, in the true Oxbridge English for
which he was renowned, with this cutting remark: New bums, same
suckers!
Greatest challenge facing My3 and colleagues
This is the greatest challenge which faces My3 and his colleagues. How to
resolve the total, prostitution of democratic and good governance norms to
a culture of nepotism, corruption and loot, shoot, and scoot mentality and
to keep the bum-sucking, ass liquor crooks, crony capitalists and bandits,
who partnered the last administration, where power and corruption were
conjoined, far away from those who exercise power in the My3
administration.
The only way is to build back institutions. Limit presidential power by law.
Establish the Constitutional Commission, constitute it with good and upright
women and men. Civil society organisations have requested that they also
be given representation on the Constitutional Council. Eliminate the
loophole which allowed a conniving chief justice and president to subvert
the law providing for the Commission. In the same way appoint good people
in consultation with the Constitutional Council to the Judicial Service
Commission (the Chief Justice and the two most senior SC Judges and two
civil society representatives), the Police Commission, the Elections

Commission, the Public Service Commission, the Human Rights

Commission, the Bribery Commission, the Telecommunication Regulatory
Commission, the University Grants Commission, the Public Utilities
Commission, the Official Languages Commission, the Press Council and the
proposed Freedom of Information Commission and National Audit
Commission.

Establish the Revenue Authority, make it free from ministerial abuse; the
Customs, Excise and Inland Revenue should have autonomous status, not
mere departments abused by politicians and conniving officials. No longer,
as it is alleged, will conniving politicians and shameless officials waive the
duty overnight on luxury vehicles which have already been landed and
reimpose duties after they have left the port and allow there re-export to,
allegedly, the Seychelles!
The Ceylon Chamber of Commerce (CCC) in its proposals for Constitutional
Reforms made to the Government in 2006 recommended that even
secretaries to ministries and heads of department be appointed in
consultation with the Constitutional Commission. For the Armed Forces, the
CCC proposed an autonomous Chiefs of Staff Council.
National Policy Council
A National Advisory Commission has been proposed in the My3 manifesto.
In this context the CCC proposed a National Policy Council (NPC) consisting

of the President, the PM, the Leader of the Opposition, nominees of the
Chief Ministers of Provinces, and professionals and civil society
representatives recommended by the Constitutional Council.
The function of the NPC is to advise the Government and PCs on all policy
initiatives, after publishing White Papers for public consultation.
Policymaking should not be the monopoly of kitchen cabinets consisting of
relatives, crony capitalists, crooked officials, brokers, bandits, casino types
and commission agents. The NPC should have a strong Secretariat and be
supported by the Cabinet Office and the National Planning Department.
Similarly in India, Prime Minister Narendra Modi has just replaced the
Nehruvian statist Planning Commission with the National Institution to
Transform India (NITI Aayog). The primary function of the new institution will
be to evolve a framework national agenda and to advise the government on
social and economic issues. It will actively consult the state governments.
This is participatory democracy at work.

A liberal democracy
A liberal democracy is, by any objective standard, the only system of
governance which has within it the checks and balances, mechanisms,
processes and procedures that can, up to some extent even, provide for a
responsive system of government, where the rulers have even a modicum
of accountability to the people they govern.

A liberal democratic system of government wherein the government is

accountable to the governed has been described by analysts and
commentators as the only form of government suitable for grownups! All
other forms of government, it is claimed, treat people as under-aged
children.
In the past, where within a nation state most of the people were illiterate,
such paternalism perhaps could be justified as nanny governance! In
todays Sri Lanka, there is no place for such thinking. Ordinary citizens are
educated, knowledgeable and in this digitalised internet and mobile phone
age, more world aware and in touch with developing situations globally. It
is truly the information age.
Governments which try to behave like the proverbial nanny, limiting the
citizens rights, curtailing media freedom, freedom of association, limiting
social media such as Facebook and Twitter and giving the defence and
security establishments a prominent role to crush dissent will be less
acceptable to its own people and the global community. Even nationalism
and national sovereignty, described, with ample reason, as the last resort
of the scoundrel, is no defence from the prying eyes of the global
community, even if the citizens rights to dissent and freedom of expression
is curtailed.
Extra-national laws, international treaties, UN treaties, rules of groups of
nations such as the European Community, institutions such as the
International Court of Justice at the Hague, the International Criminal Court
and the European Court of Human Rights are all limitations on national
sovereignty which nation states have voluntarily imposed on themselves.
Sometimes, as happened to Sri Lanka, just at this time, justifiably or
unjustifiably, depending on your point of view, the global community may
impose an inquiry into a domestic situation within a nation state, where it is
felt that the state itself is unable to resolve a situation in accordance with
internationally acceptable norms of behaviour. Therefore there is no such
thing as absolute national sovereignty, it is qualified, limited and tempered
by global standards of behaviour.
Fundamental requirements
Lets examine the fundamental requirements for an accountable liberal
democratic system of government. Strange as it may seem, the most

fundamental factor which is required to ensure a democratic system is two

sets of restraints. One restraint, among the people, and another, between
the people and the state. These restraints rest on four basic features, all
essential.
First of all, a democracy needs citizens who have the capacity to tolerate
dissent. Dissent, that is, which operates within the law. There must be
space for what has been described as a loyal opposition. Loyalty of the
citizen to the democratic political process must override their loyalty to
their own particular political point of view. Citizens must accept the
legitimacy of a government run by and even for their opponents. They must
have the confidence that they who oppose the present administration, will
in time have their own turn in government. While the legitimacy of dissent
is accepted, the use of force must be ruled out.
Secondly, democracies need guardians. Those who hold positions of
political, bureaucratic, judicial or military and police power, must act within
the law, recognising the need to comply with constitutional limitations
placed on their behaviour and that the citizens have the right to challenge
excesses or abuse of power , through recourse to an independent judiciary.
(Here the Constitutional Council is critical.)The role of an independent
media to draw attention and communicate such abusive behaviour is also
essential.
The guardians are different from those who are referred to as bandits, in
that the guardians use their powers not for their own material or political
advantage, but act according to law, observing the legal limitations on their
authority and act in favour of a nation of the benefit of the nation as a
whole and not in a partisan manner. One may, perhaps, contra distinguish a
statesman from a mere politician in this context.
Unfortunately, throughout the history of mankind, power and wealth have
been conjoined! The idea that the two should be separate is a relatively
new and revolutionary concept, not yet totally and universally accepted.
Concepts of constitutional law such as the Rule of Law and the separation of
powers and the independence of the Judiciary and fundamental human
rights and freedoms, have all evolved in the context of empowering and
institutionalising this separation of power from pecuniary wealth.
Fundamentally, the loot, shoot and scoot tendency in undemocratic
regimes is the very antithesis of this concept of guardianship.

Thirdly, democracies need properly-functioning markets, supported by a

well-functioning state. By a functioning market, analysts definitely do not
mean the abuse of power by the State to turn ordinary citizens assets into
a ruling classes private wealth. So-called entrepreneurs who build their
fortunes on such blatant theft are no more legitimate than the politicians
who connive with them. Properly-functioning markets support prosperity.
A social system which is able to ensure a decent and reasonably secure
standard of living is also most likely to ensure a stable society. This enables
citizens to place trust in the rational economic behaviour of their fellow
citizens and in a stable and predictable economic future. Most importantly,
effectively functioning markets loosen the connection between financial
prosperity and political power. Effectively functioning markets make it
possible for people to regard the outcomes of elections as important, but
most importantly, not as a matter of life and death either for themselves or
for their families. This lowers the temperature of politics to a bearable level,
rather than to one of basic survival.
Fourthly, democracies need a commonly-accepted legal regime. Most
importantly, constitutional laws and conventions. Such laws enacted and
implemented in accordance with accepted procedures, shapes the rules of
political, social and economic activities within the state. A country that
lacks the Rule of Law is permanently on the verge of chaos or tyranny. As
succinctly stated by Lord Bingham, former Lord Chief Justice of England,
described as the greatest English Judge since World War II, the Rule of Law
implies that: All persons and authorities within the state, whether public or
private, should be bound by and entitled to the benefit of laws publicly
made, taking effect (generally) in the future and publicly administered in
the courts.
Analysts cite two main reasons for this decline. One is the financial crisis of
2007-08 and the other the rise of the Peoples Republic of China. The
financial crisis was brought about by populist governments playing up to
the voters greed and steadily enhancing entitlements and handouts over
decades, allowing very dangerous levels of national debt to develop.
The politicians playing up to the voters wish for the easy welfare state
based unaffordable lifestyle, believed that they had tamed the boom and
bust cycles and were able to control economic risks. Finally, when the credit
crunch hit home the tax payer had to take the hit as governments had to

bail out the financial service providers to refinance their high risk lending.
On the other hand, the Government of China has destroyed the democratic
worlds monopoly on economic progress. China has been doubling living
standards roughly every 30 years, pulling phenomenally large numbers of
people out of poverty. The Chinese authorities claim that their Beijing Model
tight control of the State by the Communist party, coupled with a
relentless effort to recruit talented people into the Communist Partys upper
ranks delivers economic progress in a superior manner than what the
traditional liberal democracy does, in that it does not allow, dissenting
opinion, to dissipate the drive to development and also does not provide
space for gridlock between the government and its opponents, as seen in
the United States between the Democratic President and Republicancontrolled Congress.
China says its political leadership changes within the Communist party
every decade or so and the supply of fresh talent at the peak of the
pyramid of power is achieved by party cadres being promoted on their
ability to deliver in lower level posts in the hierarchy. Critics condemn China
for crushing dissent and public opinion. Yet the Communist regimes
obsession with control paradoxically means it has to pay close attention to
public opinion.
Some Chinese commentators argue that democracy is destroying the West,
particularly America, by institutionalising gridlock, trivialising decision
making and throwing up incompetent leaders with no track record. They
say that democracy makes things overtly complicated and frivolous and
allows certain sweet talking politicians to mislead the people. They point
out that many developing countries that have introduced democratic
values of governance are experiencing disorder and chaos. They say that
China offers an alternative model and countries such as Rwanda, Dubai and
Vietnam seem to be taking this seriously by curtaining democracy and
dissent and racing headlong on a steamroller of economic development.
Jeopardising liberal democracy
One reason that liberal democracy seems to be in jeopardy is due to that
elections are seen as the main requirement and not the other fundamental
requirements. As has been mentioned, the Rule of Law is vital. The power of
the state has to be checked by an independent Judiciary. The power of the

individual also must be limited so as not to violate anothers rights. Without

the freedom of speech and information, the freedom to associate and
communicate citizens cannot articulate their grievances or push for
preferred policies.
Majoritarianism is a great threat. Too often winning an election is taken to
mean that the majority has the unconstrained power to do what it likes, Sri
Lankas recent past bears this out. These are dangerous trends. The only
way to control this is to limit the power of national institutions by law. The
United Nations Charter, the Universal Declaration of Human Rights and the
European Union, all place constraints on a nations discretion. Such checks
and balances on the power of the nations states domestic policies are
required in the interest of promoting good governance.
The growing size and power of the state is one factor which jeopardises the
survival of a liberal democracy. The relentless expansion of government,
into business and enterprise, into the provision of goods and services
hitherto provided by private enterprise, reduces liberty and hands even
more power to vested special interest groups.

The governments have the habit of making promises that it cannot fulfil,

given the economic realities of the national budget. Tight fiscal rules should
be imposed, making fiscal responsibility an obligation of the budget
process. Balancing budgets can be made compulsory. Sunset clauses can
be introduced into legislation providing freebies and handouts to voters, so
that politicians are forced to renew laws within a timeframe and reconsider
the affordability and practical nature of the law.
Nonpartisan independent commissions to handle long-term policy
formulation (National Policy Council), to manage the Administrative Service,
the Police Service, the Judiciary (Independent Commission)and the Military
(Chiefs of Staff Council), and other national institutions, is another.
Such constraints can strengthen democracy by preventing people voting for
spending policies that produce bankruptcy. They can protect minorities from
persecution and ensure an independent Public Service, Police Service,
Military and Judiciary. Delegation also can be made to the voting public by
institutionalising referendums on important issues. Even allowing
referendums to initiate policy reform, like in California, USA.
While globalism constraints the power of the state, localism, by
empowering voters and micro level power, can only strengthen democracy.
The devolution of power using the principle of subsidiarity that power
must be exercised at the point closest to its impact is important. These
will go a long away in ensuring accountable liberal democratic governance.
This is what My3 and his team have to do.
(The writer is a lawyer, who has over 30 years of experience as a CEO in
both State and private sectors. He retired from the office of Secretary,
Ministry of Finance and currently is the Managing Director of the Sri Lanka
Business Development Centre.)
Posted by Thavam