19 July, 2024

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More Lawyers & Accountants Than Engineers To Unbundle The CEB

By Rajan Philips

Rajan Philips

There is no question – the Ceylon Electricity Board has grown into a public sector behemoth. It has become the Leviathan of Sri Lanka’s political economy. It sucks up government cash and owes an unpayable debt of about LKR600 billion; it counts 21,988 employees on its payroll and is on the hook for their pensions and provident finds; and it charges its consumers at rates much higher than in any other South Asian country. A once exemplary union of Professional Engineers is now disrespected for collective incompetence and systemic corruption. The big sucker needs even bigger time reform. No argument about it.

But how many Lawyers, Accountants and Administrators, and how few Engineers are needed to accomplish power sector reform? That was the first question that came to mind while reading the Sri Lanka Electricity Bill that the government introduced in April. I am not the only one, it turns out. The Supreme Court raises the same question and answers it perceptively on page 52 of its ruling on the constitutionality of the Bill following hearings in May:

“It is certainly not a fanciful hypothesis, and it would be fully compliant with Clause 38(2) as it currently reads, for three Attorneys-at-Law with ten years experience to be appointed to the Secretariat and as the Director General. Given the absence of any provision to appoint other staff members to the Secretariat, the Secretariat would not have the benefit of any persons with experience in the field of power system planning and operation or an electrical engineer.”

Judicial Frustration

Here the Court is referring to the setting up of the Power Sector Reform Secretariat, a key one among many agencies in the complex architecture of the new law to reform the power sector, and the criteria for its composition detailed in Section 38, Part XIII of the Bill. The Court’s concerns are outlined under the heading “Expertise of those entrusted to manage the entities that are established,” and they are a response to one of the arguments on behalf of the petitioners that the law must ensure that the newly created “entities are led and managed by experts and professionals with experience in the relevant disciplines, and that the criteria for appointment be laid down to prevent friends and family of the appointing authority from being appointed.”

The Court then makes the clarion call that “the time is certainly ripe for this Court to insist that meritocracy be restored, respected and adhered to when appointments are made by a Minister, or any governmental authority and we therefore take the view that any failure to do so would result in the fundamental rights of the People guaranteed by Article 12(1) being infringed.”

Article 12 (1) enshrines the fundamental right that “All persons are equal before the law and are entitled to the equal protection of the law.” This is quite a statement by the Supreme Court – to emphasise ‘meritocracy’ and to assert the fundamental right of citizens to have meritocracy recognized and observed in any instance and every instance by any government and every government.

Indeed, the Court held that the Bill as a whole and several of its provisions are inconsistent with Article 12 (1) of the Constitution and suggested a number of amendments to address the inconsistencies and avoid the need for passage by a two-thirds majority. As it has now become the legislative practice in Sri Lanka, the amendments recommended by the Supreme Court were passed during the Committee Stage of the Bill, before the Third Reading and passage on Thursday, June 6. Parliament and the country would seem to have come to take governments’ word for incorporating mostly substantial amendments in Committee.

One senses an undertone of judicial frustration in the ruling of the Supreme Court on the Electricity Bill that the government finally introduced in April after withdrawing an earlier draft Bill that had been criticized for its significant errors. Obviously, not all the errors had been addressed in the Bill presented to parliament in April, and they became the subject of a number of fundamental rights petitions that the Court heard and seemingly agreed with in its ruling.       

Before dealing with the question of meritocracy, the Court summarized the legal submissions on behalf of the petitioners into “two categories”: (1) the “unclear, vague and irrational” provisions of the Bill that the Court itself would seem to have acknowledged as “permeating” much of the Bill; and (2) the “unbridled power” assigned to the Minister by the Bill. The upshot of the two could potentially lead to “arbitrary implementation of the provisions of the Bill.” The Court identified the specific provisions that could lead to arbitrary implementation and suggested amendments to address them.

Addressing the arguments for the government by the Additional Solicitor General on the need for electricity reform and her assertions of safeguards in the Bill against arbitrary implementation, the Court noted that it is “mindful that the task of making policy is the prerogative of the Executive, and that the enactment of laws is within the domain of parliament,” and that “whether the Government wishes to shift the electricity sector from being a Government owned utility provider to a profit earning sector consisting of many players is entirely a matter of policy.”     

At the same time, the Court went on, the President and the Cabinet of Ministers must constitutionally be guided by the Directive Principles of State Policy enshrined in Article 27, and specific to the project of unbundling the CEB, it must be carried out without vagueness but with clarity and precision. Otherwise, although the Court did not quite put it in this way, the cure of unbundling the CEB might turn out to be worse than the diseased bundle.

Judicial Drafting

Perhaps the most glaring vagueness as some of the Counsels for the Petitioners pointed out with the Court agreeing is in the assignment of dates on which the different provisions of the law are set to come into operation. The Bill before the Court provided for the main body of the law to come into operation on a date appointed by the Minister or at the end of six months whichever is sooner. Four exceptions were identified. Two of them, namely, the provisions for the establishment of the National Electricity Advisory Council and the establishment of the Power Sector Reforms Secretariat will come into operation upon the enactment of the law by parliament. The other two, the operationalization of open access and the operation of the Wholesale Electricity Market, are both set to commence on dates appointed by the Minister, but the Minister is given a window of five years to determine those dates with the option to extend them one year at a time for another five years.

In other words, the Advisory Council and the Reform Secretariat could be established as soon as parliament enacts the Electricity Act, but without any of the supporting provisions of the law, including the provision stipulating the objectives of the Bill and the provision  enabling the making of electricity policy and mobilizing resources, the two agencies would be constrained to function in a vacuum.

The anomaly was pointed out in the petitions challenging the constitutionality of the Bill, and the Government was ready at the hearing to submit and confirm that the Bill would be amended at the Committee Stage to include four additional provisions that would also come into operation on the day of law’s enactment, while extending the Minister’s discretion to enable the operation of all the rest of the law from six months to twelve months. Two of the amended additions would activate the objectives of the Bill and enable policy making. The Court found the Government’s addition of four provisions to be inadequate for streamlining the operationalization of the law and added further provisions to enable the establishment of the National System Operator.

It will not be an exaggeration to say that as part of previewing bills for their constitutionality, the Supreme Court has been forced to undertake the task of redrafting badly drafted bills. In the case of the Electricity Act, the poor drafting of the Bill is also indicative of the level of competence that the government seems able to muster to implement the reforms of the power sector that the new law sweepingly envisages. The bigger worry should be the warning about the challenges of privatisation in Sri Lanka that the late Saman Kelegama once alluded to: “in a weak regulatory and legal framework with weak institutional capacity, poorly managed and badly conceived privatisation can compound the problems.” Further, “the weaker the economy and governing institutions, the more difficult it becomes for privatisation to yield benefits.” Economically and institutionally, Sri Lanka and specifically the electricity sector, are in a far worse position now than they were when Dr. Kelegama wrote this in 1997!

The Electricity Act is now in place, but the Minister has one year to appoint the date on which most of the provisions of the new law, save those amended by the Supreme Court, will come into operation. He could do it sooner, but the provision of such a long window would suggest that the present government is not confident about having all the pieces in place to fully operationalize the law. During this interval of one year, there is the certainty of a presidential election and the distinct possibility of a parliamentary election. The obvious and passive question to ask is what will happen to the implementation of the Electricity Act if there were to be a new President after October, and a new parliament next year. The question that ought to be asked, however, is what the opposition leaders who want to be elected as President and form the next government, will do with the Electricity Act if they were to be elected to power. (To be continued).

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Latest comments

  • 9
    11

    Speaking of engineers …… I stumbled on to this, looking at some links given here in the forum ………. https://thuppahis.com/2017/01/13/looking-back-at-ds-senanayake-and-the-gal-oya-project/

    I know this project is a very contentious one for many Tamils ……. but if you read it many Tamils were also involved in the project. This is written by Ajit Kanagasundram whose father was assigned the Chairman Gal Oya Board.

    • 6
      10

      Nimal,
      “The first thing my father did was to restore harmony among the Board members, who were at that time not on talking terms and prone to fling files at each other during Board meetings,”
      Sounds so familiar. Even in those days, Sri Lankans were first-class prima donnas, it seems.
      Nothing has changed.

      • 6
        3

        Rather like you, old codger!
        .
        No name, no telephone number, no identity card, no address, age unknown, but you must be registered as a voter, and you have, without doubt, contributed in large measure to the ruin of a once prosperous country.
        .
        You ought to be in sack-cloth and ashes, but instead you pontificate.
        .
        What an enemy of the people!
        .
        Panini Edirisinhe (NIC 483111444V) of 51B, Golf Links Road, Bandarawela, Sri Lanka

        • 4
          1

          SM,

          “You ought to be in sack-cloth and ashes, but instead you pontificate.”

          You are correct. Anonymous people who pontificate while hiding their own identity are best labelled “cowards.”

          • 1
            4

            “Anonymous people who pontificate while hiding their own identity are best labelled “cowards.””
            Especially those who admit to running away from “suicide bombers”.

        • 1
          4

          SM,
          Be careful. The wrong type of flies are being attracted to you.

  • 4
    3

    Sorry to say that engineers at the CEB are playing politics.
    There is also money involved in many deals.

  • 10
    4

    I thought I’ve said everything that needed to be said, but remembered that I have spoken less about my time at Biomed International. Couple of quick things: i once got this feeling that they had checked upon my financial situation, it looked like somebody went through the recorfs of ETI, Edirisinghe Trust Investment, a non banking financial instituion (NFBI), where our family members, including me have deposited money, in search of how much money I/we have in deposits. Not sure whether check the bank accounts and deposits too. But definitely ETI. I have a feelimg it was the director Fonseka who maybhave done it. Idiot is from Panaduta and I felt ia someone who was working against me behind the scenes.
    .
    Another thing that is worth mentioning is that there were times my phone would not gave dial tone. The office fixed line extension given to me. Upon closer look at the phone I had at least on couple of occassions noticed that the phone is disconnected from the line. It looks like someone was purposely doing this.
    .
    TBC

    • 10
      3

      Same thing used to happen with my chair there were days that when I return to my desk after been away the chair has been lowered that from the height I had adjusted it for. Happened quite frequently and mostly whenever I go to have a meeting with the Managing Director.
      .
      I believe the latter two are works of Chamindra Dharmapala.

  • 2
    0

    SRILANAKA PORTS AUTHORITY AND ELECTRICITY BOARD Both are used by all political parties in srilanaka as a dumping ground for giving jobs for party supporters soon after a new government comes to power.most people who are appointed even without basic qualifications.some of them even use their party connections and sign the attendance go out to do another job and comes to office to sign out.some claim overtime by just signing in without having to do any thing.NOW SUDDENLY THE GOVERNMENT HAS GOT UP FROM SLEEP AND TRYING TO CORRECT A LONG STANDING MISMANAGEMENT OVER NIGHT.NOW RANIL KANCHAN WIJESEKARA TRYING THEIR BEST TO DO SOME THING TO SORT OUT A LONG STANDING FINANCIAL PROBLEM WHICH IS LIKE CANCER IN SRILANKAN POLITICAL SYSTEM.IN CASE RANIL WILL NOT COMES TO POWER AGAIN A NEW GOVERMENT MAY FORCED TO CANCEL EVERY THING GOING IN A GOOD DIRECTION.THAT IS WHAT SRILANAK IS FAMOUS FOR.

  • 3
    0

    I thought the customs & RMV were the most corrupt in SL but now I add the Elect. Board as well from personal experience.

    A few years ago, I was renovating my parents house & part of the old building had to be demolished. I had to move the old fuse box from the wall that had to be demolished to the adjacent new wall & made a request to the elect board. I was told by a clark that a date could not be confirmed which could even take a few weeks & for me to contact an official, who I couldn’t locate at that time. A ‘sympathetic’ peon appeared suddenly & promised to arrange the work to be done immediately at a cost of Rs 10,000. Time was of the essence as I had to get back to UK, so I reluctantly agreed. A few hours later a truck turned up & completed the work in a few minutes. Apart from the driver, there was a person who switched off the current at the post, another to hold the ladder & the 4th to disconnect my old supply & connect the new fuse box. In UK, a single person would do all that & everything could be arranged by phone to be done, usually, the next day. Apart from the loss of revenue to EB, the lethargy & inefficiency is unbelievable.

    • 4
      0

      Cont.

      Later, I was selling the property & the potential buyer wanted to move the HT pylon that was going across my land moved to maximise the land use. The broker agreed to discuses with the Elect. board to install another pylon so the the cables ran over the boundary wall instead of across the property. Officially, it was discouraged but unofficially, I was told that it could be done for Rs 5m. Once again I had no choice but I said I will pay the Elect. board cost & the balance as gesture of thank after the completion of the job, to which they reluctantly agreed after my broker gave his personal guarantee. The actual estimate of the Elect. board was Rs 1.8m & I was told the balance was to be distributed among the engineers & other officials as well, hence the high cost. It was not a bribe but extortion & this is how the Elect, board is losing revenue.

      No doubt those involved were products of SL universities & probably colleagues of the NPP high ranking members. If the NPP is prepared to stamp out corruption & improve efficiency, I am more than happy to provide details for the NPP to act on. .

      • 0
        3

        Raj-UK,
        .
        So, you’re one of the biggest bribe-givers the world.
        .
        Send them to me, and I will forward it the very day the NPP wins the Presidency.
        .
        It is AKD who will be elected, but he will self-effacingly term it the NPP Presidency!
        .
        Panini Edirisinhe (NIC 483111444V) of 51B, Golf Links Road, Bandarawela, Sri Lanka

        • 2
          0

          Sinhala_Man

          I don’t take bribes nor do I give but in SL, it is extorsion. That is the difference. In UK, offering a bribe to expedite a job is unheard of & in my employment, even if I am taken out for a meal by a client, it has to be disclosed. If I stuck to my principals, I wouldn’t have been able get things done. In fact, when I brought my old car to SL in 2000, the clearing clark demanded Rs 5000 to ‘keep the customs officials happy’ & when I refused, he implored, that it would make his job difficult & even delay the process. I complained to the Manager of the clearing agency but even he admitted that it was customary & I had to give in. However, once when coming home after dinner, I was stopped by the police on a routine check & when accused of being drunk, I challenged the office to prove by either breathalysing me or taking a blood sample. All he could say was that he could smell alcohol but I hadn’t even a beer as my host was teetotal.. Although my friend was ready to give him the money for the ‘fine’ (for him to pay on our behalf) I stood firm & in the end, the officer let us go muttering that they had to ‘eat parippu’ while we enjoyed a good meal. This is SL I am accustomed to & if AKD can change the ‘system’, good on him but I am not holding my breath.

          Anyway, as soon as AKD is President or even in the opposition, I will send all the details of the EB demand to you with my thanks.

          • 0
            2

            Thanks, Raj-UK,
            .
            If I’m still alive on the 6th of October, when AKD is declared President on the first round of voting, which is what I expect, I shall forward all those shocking details about the CEB;
            .
            Even if AKD gets only 40% on the first round, provided he is ahead of Sajith, he will still win. Next to no SECOND COUNT ballots to be looked at. I re-affirm my intention to give a SECOND PREFERENCE to Siritunaga (who got 3,944 votes in 2019), and should I give my THIRD to Namal Rajapaksa. No, no!, leelagemalli, not for Mahendra’s son, but for the guy who polled 9,497 votes in 2019.
            .
            https://en.wikipedia.org/wiki/2019_Sri_Lankan_presidential_election
            .
            It will be interesting if all readers look at those 2019 results. Isn’t that a lot of votes for Namal to have received in 2019? He would obviously have been mistaken for Gota then. That was clearly the intention in nominating him in 2019. Now it will be even more likely that he will top that number if the “son of Mahinda” actually contests.
            .
            In 2015, who was third?
            .
            https://en.wikipedia.org/wiki/2015_Sri_Lankan_presidential_election
            .
            Ratnayake Arachchige Sirisena with 18,174 votes. Yes, only that to come third. But why did he contest at all? Clearly, even that number was reached only because of the guy who won with my vote helping him. Fourth? Many of us who voted for My3 in 2015 are ashamed that the fellow received our vote; how confusing all this is!
            .
            I’m giving those links in the hope that readers will make occasional visits to those statistics.

            • 4
              0

              SM

              I wish you long life & I am sure you will live to see the day AKD is triumphant, just that you may choke if you have to eat your words later.

              I can see the dilemma voters have with no credible & proven leadership but if a Rajapakse brat throws in his hat unashamedly & if he get even a single vote, it says a lot about the mentality of SL voters. I can’t understand the ‘preference’ vote. You vote for the best candidate of your choice & that’s it, no second round. In a democracy, anyone according to the constitution can come forward but voters should reject jokers by not giving them any vote, its just a waste of public funds & resources.

  • 1
    0

    Rajan Philips ,

    You need Engineers only second to the Accountants and Lawyers , if you want
    to build something with IMF and WB money . For local borrowing , unqualified
    Accountants can handle the situation . We need enough lawyers to find enough
    Daisy Achchis with Diamond bags and accountants to do accounts of Daisies .
    Central Bank is full of Accountants and Legal Advisors sweating out day and
    night to unplug holes to let Rats out to safety and make the Bank a clean place .
    Now that we have 75 % of girls dominating the law college , rest assured , the
    paradise is not the same anymore .

  • 3
    0

    Raj-UK: I told you that this country is UNIQUE and things happen uniquely.

    You feel a “Prey” to that SYSTEM. Take note, NPP is well aware of these “SYSTEMS” and they pledge to change this culture. This is our mission too. We are aware that NPP cannot perform miracles but at least that culture of IMPUNITY will be reversed.

    • 6
      9

      Douglas,
      You forget that the CEB unions are run by the JVP. AKD makes speeches about “changing the system “, but JVP unions are very much part of the system. That is why I say the JVP has two faces. Its public face is different from its private one.

      • 2
        2

        OC,
        “That is why I say the JVP has two faces. Its public face is different from its private one”.
        .
        Sinhala racists that stood all along behind medamulana criminals.
        .
        Our people are prone to disasters. One behind the other.
        .
        Gota wasted 3 yrs.
        .
        AKD ‘s will last just 6 months.
        .
        Good luck 👍 srilanka!

    • 2
      0

      Douglas

      As OC says below, the JVP is in control of the trade unions, so are they going to weed out the corrupt elements only when in power. Can’t they crack the whip on their errant members without being in power?

      • 0
        2

        Dear Raj-UK,
        .
        No,
        they can’t crack that whip now! That’s where realpolitik affects even the NPP.
        .
        Let me confess that here, so that you understand that the NPP can’t do certain things at this stage. I’m not sure how this statement by me will be brandished by old codger. I don’t care! But, please understand that the NPP cannot alienate their Sinhalese voter bank, or the Unions, by talking carelessly. When I talk to the guys at Pelawatte, they acknowledge that Lal Kantha’s talk of making the implementation of Justice more people-friendly and Handunetti’s mentioning the names of three billionaires represented words ill-chosen.
        .
        In a different way, but more honestly, AKD has not emulated Ranil by talking about “full implementation of the 13thAmendment”, and distributing all government land. It is that sort of of loose talk makes it difficult for governments to implement sensible policies.
        .
        However, listen to that London meeting. He has clearly stated that attendance at meetings will not be a criterion for giving jobs. He has been saying that consistently at all meetings. I know that you can’t afford to listen to all meetings. That’s why I say, listen properly to the one in London, and depend on guys like Douglas and me not to MIS-lead you, the way “leelagemalli” does!
        .
        Panini Edirisinhe (NIC 483111444V) of 51B, Golf Links Road, Bandarawela, Sri Lanka

        • 1
          0

          OK, so AKD doesn’t want to upset trade unions by cracking the whip now but but what makes you confident that he can do so once in power? There is an interesting story about Nixon trying to get the vote of America’s biggest trade union, ‘Teamsters’, which controlled the entire trucking operations with the help of the Mafia to get to its leader, Hoffa. After Nixon won, he was under obligation to Hoffa who later ‘disappeared’, never to be found to this date. With the Unions involved in the running of the NPP, do you seriously think AKD can crack the whip on them or do you think the unions will voluntarily follow AKD’s incorruptible leadership?

        • 1
          6

          SM,
          “No, they can’t crack that whip now! That’s where realpolitik affects even the NPP.”
          I understand. AKD cannot go against people who are useful to him. After all, he needs their votes on the Politbureau to stay in power. Okay so far.
          But why do YOU object when Ranil does the same thing by protecting the Rajapaksas, who keep him in power? Do you have different standards for different politicians?
          “.But, please understand that the NPP cannot alienate their Sinhalese voter bank, or the Unions, by talking carelessly”
          So, the JVP is concealing some of its intentions in order not to offend the Sinhalese? In other words, being dishonest? But that is exactly what you accuse Ranil of doing too.

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