Rule of Law and accountability in the management of public funds

| by Shanie

"Turn me not into a snail

my feelers chopped off.

Turn me not into a coward

by preaching of gods.

Turn me not into a buffalo

burdened with false views.

Make me not into a ‘good boy’

with hands and mouth gagged.

Allow me to question like Socrates,

Doubt like Descartes,

Crash through like a gushing river

cut clean as a knife.

Let me rise, erect

like a penis."

- Parakrama Kodituwakku

- translated from the original Sinhala by Ranjini Obeysekere

( May 19, 2012, Colombo, Sri Lanka Guardian) Parakrama Kodituwakku wrote this poem in the early seventies not long after the first southern insurgency. The poem has a clear message with a call for social, political and intellectual tolerance and an acceptance of the dissident. It is rich in metaphor and has been ably translated by Ranjini Obeysekere, Although written forty years ago, it still has relevance, perhaps even greater relevance, for Sri Lankan society of today. Kodituwakku was a highly recognized poet who wrote in Sinhala. Likewise, Professor M A Nuhuman was an equally renowned poet who wrote in Tamil. During the northern insurgency, he wrote a poem that echoed sentiments similar to that of Kodituwakku and which poem has again great relevance to Sri Lankan society today:

"Last night

I had a dream.

Lord Buddha was shot dead

by the Police –

guardians of the law.

His body lay drenched in blood

on the step

of the Jaffna Library.

Under cover of darkness

came the ministers.

‘His name is not in our lists!

Why did you kill him?’

they ask in anger.

‘No, sirs, no!

There was no mistake.

Without bumping him off

it was impossible

to harm even a fly.

Therefore…..’ they stammered.

‘Okay, okay!

Hide the corpse.’

The ministers vanished."

A Commemoration meeting for the late H L de Silva was held last week, chaired by H M G S Palihakkara, our distinguished former diplomat. In his remarks from the Chair, Palihakkara referred to the imperative of upholding the Rule of law as the message that H L de Silva left behind for us. Indeed, many years ago in a lecture he delivered at Avadhi Lanka, de Silva quoted the eminent Jurist Professor Sir Jeffrey Jowell as having stated that twentieth century tyrannies were marked by their failure to observe the Rule of Law. Many of them claimed legitimacy for their oppressive actions from the fact of majority support. de Silva went on to say: "I do not think any right-minded person would tolerate or condone gross misconduct or grave depravities in behaviour for long, because in in our experience many powerful men in the world holding high office have, often, quite unexpectedly, been brought down from their own pedestals of power and prestige by a fortuitous discovery that they had been guilty of disgraceful conduct which would make them unfit to hold high office."

Dangers of Public Apathy

De Silva urged that there must be a strong climate of public opinion against crime and violence. This will prevent government leaders and other political leaders (even from the opposition) from condoning or associating with lawless elements who engage in violence and take cover under political patronage. de Silva had urged private individuals to file public interest litigation or writs of mandamus or even institute private prosecutions. The public are aware of instances where, either owing to political pressure or owing to a sycophantic attitude among prosecuting authorities, charges against criminal elements are not instituted or dropped midway. Sadly, such instances have cast a shadow over the integrity not only of the Police and the Attorney General’s department but even of the Judiciary as well.

The NSB-TFC Scandal

The latest instance of corruption or mismanagement or both is the case of the purchase by the National Savings Bank of shares in the troubled The Finance Company. Many unanswered questions have arisen in respect of this seemingly sordid deal – why such a premium price was paid for the purchased shares, whether there was a conflict of interest behind the stock broker who put through the deal, whether the Board of the National Savings Banks exercised due care in safeguarding depositor interests in this transaction, etc. Questions have also been asked if the National Savings Bank Act allows for the Bank to make such investments in a Finance Company. From what is now public knowledge, the transaction has done the National Savings Bank no good. There have been reports that there may be a public interest litigation filed privately but there is no indication that an investigation is to be done and the culprits brought to book. The indications appear to point at a cover-up of the sordid activities of those responsible, even if the transaction is reversed. Good governance demands that no public official should continue to hold office as soon as a prima facie case is established for any irresponsible conduct in the discharge of his duties,

The Central Bank’s EPF

Another body that has invited scrutiny is the Employees Provident Fund managed by the Central Bank. Harsha de Silva, the opposition parliamentarian, who has been in the forefront of raising issues concerning the management of our country’s economy and finances has alleged that the EPF has been engaged in fraudulent activity. The EPF monies belong to the private sector employees. The EPF is expected to manage the huge funds to maximise the returns for the employees and ensure that they receive an adequate lump-sum payment on retirement. As in the case of the National Savings Bank, de Silva alleges that the EPF has been totally irresponsible (or fraudulent) in their investment policies.

As in the purchase of TFC shares by the National Savings Bank, de Silva has alleged that the EPF purchased shares in a private company at an over-valued price. The implication is that there has been manipulation in share values in the Stock Exchange. The truth can only be established if there is a proper independent investigation. The performance of the Colombo Stock Exchange has been poor and it is time that, irrespective of personalities involved, there is a re-examination of the activities of these institutions. The country cannot afford to be silent when public funds are being squandered through corruption and/or mismanagement.

It appears that Harsha de Silva has raised parliamentary questions regarding EPF. Since October 2011, the Minister of Finance (the President) to whom the questions were directed has been asking for time to furnish the answers. de Silva also alleges that the EPF has not appeared before the Public Accounts Committee of Parliament since 2006 to answer questions regarding audit queries, etc. Public officials, enjoying political patronage, seem to act with utter irresponsibility with little accountability for the public funds they manage.

Force of Rule, not Rule of Force

Palihakkara in the course of his remarks from the Chair at the H L de Silva commemoration meeting quite rightly pointed out that a diminishing respect for the rule of law diminishes us all, He said: ‘This erosion will allow impunity to raise its ugly head. Usually, impunity signals the onset of decay. Neither those who govern nor those of us who are the governed will be spared. It impairs civilized life and democracy. And it undermines the investment climate. Conversely, the upholding of the rule of law manifestly strengthens sovereignty, pre-empts external calls for intrusive accountability, deters threats to the territorial integrity of the nation and facilitates the enjoyment of fruits of citizenship and democracy by all. Our image abroad cannot be significantly different from the rule of law image we create at home for ourselves. When the rule of law suffers at home, our image abroad suffers too. When we nurture a rich culture of the rule of law at home, image abroad becomes richer, even if the country remains poor in economic terms. This also appears to be the central message conveyed by thousands of citizens who testified before the LLRC as well. So it is all in our hands. We do not have to blame conspirators, indigenous or alien. Sri Lanka has a long history of democracy. Recently we have seen democracy making history in some other countries of Asia, and Africa and even in Europe. They have chosen the rule of law in place of the rule of men. We had made that choice much earlier and nurtured it thanks to the enlightened contributions of the likes of HL de Silva. The best tribute we can pay to such sons of the soil is for all of us , those who govern and those governed, to recommit ourselves to say an unequivocal yes to the ‘force of rule’ and say a firm no to the ‘rule of force’.