By Basil Fernando –

Basil Fernando

In response to the calls for proposals from the public for the 2016 Budget, by the Ministry of Finance, Sri Lanka, the Asian Human Rights Commission (AHRC) submitted proposals calling for adequate financial allocation towards the modernisation of the policing institutions, the judicial institutions, the creation of an effective agency to control bribery and corruption, and for the effective implementation of the new witness protection law. The AHRC in its proposal stressed the need to give serious attention by policy makers towards making adequate financial allocations towards these institutions, in the Budget 2016, if the Government is to ensure good governance, end corruption, fraud and waste. 

The full text of the AHRC Proposals is as follows;

4th September 2015

Mr. K D N Ranjith Asoka
Director
Department of Trade and Policy
Ministry of Finance
The Secretariat
Colombo 01
Sri Lanka

Dear Mr K D N Ranjith Asoka,

Response of the Asian Human Rights Commission to the Call for Proposals in regard to the formulation of the 2016 Budget – issued by the Ministry of Finance, Sri Lanka

In response to the calls for proposals from the public for the 2016 Budget by the Ministry of Finance, Sri Lanka we are submitting to you the following proposals deemed as essential to ensure good governance and increase in the efficiency of the state apparatus as a consequence of which development of the productivity and the efficiency of the Sri Lankan economy may be better enabled.

Making adequate financial allocation to modernising the policing institution

We note that the statement of Government Policy presented by His Excellency the President on 1st September 2015 in the Parliament has clearly emphasized the commitment of the State to end corruption, waste and fraud. Practically speaking, this objective can be met only if there is effective law enforcement in Sri Lanka. To end corruption fraud and waste, there should be a financial commitment to significantly improve the law enforcement capacity of the government.

When it was campaigning for power during the presidential elections of January 2015 and the general election of August 2015, the present government exposed the manner in which Sri Lanka’s legal system has been undermined and the extent to which the policing, the prosecution and judicial systems have been destabilised by the previous government due to its neglect of good governance.

We do not wish to labour to demonstrate the extent to which the Sri Lankan policing system has suffered not only during the previous government but also since the adoption of the 1978 Constitution through which the Executive Presidential system which the new President has vowed to dismantle, brought in politicisation of all institutions including law enforcement agencies. The question that arises for the preparation of the Budget is the manner in which to provide the necessary financial resources to remedy such destructive past precedents. The saying “to put your money where your mouth is”, directly applies in this instance. For no amount of rhetoric can undo corruption, fraud and the waste unless law enforcement agencies are given the necessary resources to function properly in fulfilling their obligations.

The Sri Lankan policing service provides a useful example of the finances that are needed in order that it can become a modernised policing force with both human as well as other material resources which would allow them to function efficiently. It is acknowledged that the Sri Lankan policing service still remains basically in its colonial mode and it has even being pushed back further due to the political climate since the 1970s up till the present times. In all functional democracies the world over, new models of policing which are suitable for democracies have been developed. In the United Kingdom, this process started as way back as in 1832 when the Metropolitan policing system, which was based on the notion of policing by consent, was introduced. The very notion of policing underwent a radical change. It was that process which has also been initiated in other countries like the United States and most European countries which has enabled these nations to achieve the levels of stability that they experience now. It is this stability that brings in investments and sustains their economies. The failure and instability of law enforcement in the country is a fundamental obstacle for countries like Sri Lanka in order to attract direly needed investments for its economy. When His Excellency the President talks about the need to end, corruption, fraud and waste, he is in fact acknowledging how these factors have brought about the undermining of social order and as a result, are undermining the possibilities for economic growth.

All observers agree that policemen in Sri Lanka are poorly paid, and poorly equipped and very poorly trained. Improved law enforcement requires a radical change in all those aspects. Above all, the investigation of crime needs to be done only by skilled investigators who have been given the opportunities to be educated in regard to the various branches of the forensic sciences and other skills such as efficient communication skills that are a fundamental part of any modern institution. Computerisation of all documentation beginning with the recording of complaints and other evidence could within a short time bring great relief to all the citizens who resort to seek relief through the legal process. The actual cost of such a computerisation process may be comparatively small but the benefits to the system as well as to the citizen are enormous. In modern society, corruption and crime are sophisticated affairs. Unless the law enforcement agencies are superior in their sophistication, they would become victims of all kinds of manipulations with the result that the present unhappy situation will continue.

Therefore, it is essential to estimate the budget needed for the modernisation of the policing system. We wish to emphasize if the needed budget is not provided, the Finance Ministry would have to take the responsibility for the failure to implement perhaps the most important policy declared in the Government’s policy statement which is to end corruption, fraud and waste. We hope the Ministry of Finance would understand the gravity of this situation and make a clear commitment by reserving adequate financial allocation for this purpose in the forthcoming Budget.

We note further that for many decades, the Sri Lanka Police has been seriously exposed to criticism in international and local forums due to widespread use of torture and ill treatment by the police. Well documented records show that the victims are almost always from the poorer communities. A police force that resorts to such widespread use of torture indicates that it is poorly equipped to engage in the task of law enforcement. The use of torture and ill treatment is an indication of an outdated and a primitive policing system. Modern systems which relies on more technical means of collection of evidence does not need to resort to torture and ill treatment. Besides, the available statistics show that almost 80 percent of the victims of torture are innocent persons. In countries such as Sri Lanka, torture is effectively used as a means of obtaining bribes. Therefore, the Government’s commitment to end corruption and fraud implies also the ending of the use of torture and ill-treatment. From the point of view of enhancing the prestige of the law enforcement agencies in the international forums as well as enhancing public confidence in these institutions, the providing of adequate budgetary allocations for the proper functioning of the policing system would go a long way.

Financial allocations to uplift the judicial institutions in Sri Lanka

One important critique featured in the opposition platform against the previous government, related to the enormous damage done to Sri Lanka’s judicial institutions. In fact, over a long period of time, a conscientious citizenry had expressed their dismay about the manner in which judicial institutions have been attacked and neglected. Starving the institutions by refusal to provide adequate budgets became a feature in Sri Lanka since former President JR Jayewardena adopted such a policy. In order to enjoy excessive powers, the Executive presidential system needed to undermine judicial independence. Such undermining resulted in making the judicial system virtually dysfunctional. His Excellency the President and the Prime Minister would have no difficulty in understanding that good governance is impossible if the judicial institutions remain in this same dysfunctional state. Much needs to be done to resuscitate the judicial institutions in Sri Lanka. One of the factors that will determine whether such a change would happen is state commitment towards making the necessary financial resources available.

Such resources are needed for the improvement of the capacity of judges, the improvement of the infrastructure including improvement of the communication facilities to be in in keeping with modern court rooms with the use of computers, recording instruments, well-maintained websites and the like.

The delays that are imbedded in the system of adjudication have come to a point where citizens are discouraged from accessing the judicial process to find redress for their grievances. This affects not only the citizens but also the government. A government in power has a justifiable fear that manipulation of the possibilities for delay in the adjudication process could be used as a means of sabotage of initiatives that it may want to pursue. When governments have such fears it may result in such governments finding ways to circumvent the legal process in the pursuit of their projects. That creates a lawless situation and such a situation is extremely detrimental to the encouragement of investments. Delay in adjudication is therefore a serious onslaught on the political system, the social system as well as the economic system itself. Therefore, any government that wishes to follow and enlightened policy in a realistic manner, would not dare to ignore such a negative situation that exists within the judicial system due to the scandalous situation of the prevalent delays. What is important from the point of view of the Budget is that such delays in adjudication cannot be addressed in any significant manner without making the necessary financial allocations to end such delays. This means providing financial resources for the increase of judicial officers as well as other human resources, the improvement of infrastructure, along with other investments such as in regard to creating adequate space for court rooms, and also improving the communication structure. To maintain a judicial system that is as dysfunctional as what exists now, is a colossal waste. His Excellency the President has promised to end waste. If that is to be a practically realisable promise, then it is essential that the investments as mentioned on ending such delays in adjudication should not be postponed. We therefore urge that making of such budgetary allocations should be a priority in the forthcoming Budget.

Budgetary allocations for creating an effective agency to control corruption

The Commission against Bribery and Corruption in Sri Lanka is built on an outdated model. No efficient performance can be expected so long as this model is not abandoned in favour of a modern system as is available in many countries in the world where corruption has been effectively controlled. Modern corruption investigators are equipped with knowledge in many fields that are connected to the ways which produce corruption. They are also equipped in modern forensic sciences which enables successful investigations. They possess the necessary equipment for efficiently carrying out their functions. They are also adequately paid, so that they would not have to resort to other means of improving their incomes to maintain their families. Given the vociferousness of the Government when in the opposition, in exposing the corrupt nature of the previous government, citizens have a right to expect that practical and tangible measures will be adopted in order to discard the outdated model on which the Commission against Bribery and Corruption has been designed and that a more modern system will be installed as soon as possible. Nothing would discourage the electorate more, than to see that the government’s claim to end corruption is confined to mere rhetoric only. To go beyond rhetoric implies the provision of adequate budgetary allocations to establish a modern Bribery and Corruption Control agency which can act efficiently and speedily.

It is encouraging to note that His Excellency the President himself has publicly declared his intention to replace the existing model of the Commission with a more modern system. We hope that in the new Budget, the citizen will be able to see the financial commitment in regard to the realisation of this much needed measure.

Making budgetary allocation for the effective implementation of the new witness protection law

After many years of agitation, it is encouraging to see the adoption of a new law on witness protection during the period of the interim government. Now the question is as to whether the law will remain merely a paper law or whether there will be a genuine attempt to implement its provisions. This again implies making the necessary budgetary allocations in order to ensure that various aspects of a witness protection scheme would be supported by budgetary allocations. Effective witness protection requires the presence of officers who have capacities needed to implement this particular law. Ensuring that these officers have the financial and other means to carry out their duties is essential. Witness protection also requires the allocation of various funds on behalf of the victims themselves in situations of dislocation and other contexts. Of particular importance are the facilities provided for particularly vulnerable segments of society such as women and children who are in need of such witness protection. We hope that the Government will make the needed budgetary allocation for this purpose in order to demonstrate its commitment to practical implementation of this law.

We expect that the highlighted concerns would receive serious attention by policy makers during the forthcoming formulation of the 2016 Budget. We attach herewith for your convenience, a letter previously written to the then Minister of Finance when he was first appointed to this post under the interim government dated 13 January 2015.

Yours Sincerely,

Basil Fernando
Right Livelihood Laureate
Director, Policy and Programmes