20 October, 2020

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Reform The Proposed 20th Amendment To Strengthen, Not Weaken, Transparency & Public Oversight

By Shreen Abdul Saroor

Shreen Saroor

Following parliamentary elections, President Gotabaya Rajapaksa wasted no time in obtaining cabinet approval and thereafter gazetting the proposed 20th Amendment to the 1978 Constitution of Sri Lanka. Many commentators have noted how the 20th Amendment as proposed will diminish parliamentary powers, erode judicial independence, and weaken independent commissions.[1]  But it is also critical for ordinary people—especially those who voted for the current government—to know that the proposed 20th Amendment will usher in an era of unchecked corruption shackling future generations. The President and the Prime Minister urge us that repeal of the 19th Amendment is necessary for economic development.[2]  What they don’t tell us is that the proposed reforms reduce transparency and oversight, at the expense of economic development. We can and must demand more from our elected leaders.

Passed in 2015, the 19th Amendment to the Constitution requires the Constitutional Council to appoint a qualified auditor as independent Auditor-General. The 20th Amendment empowers the President to appoint any person to this position in his sole discretion. Constitutional protection for the Audit Service Commission will disappear, and audits will no longer be required for the President and Prime Minister.[3] Whereas the 19th Amendment strengthened the Commission to Investigate Allegations of Bribery or Corruption by allowing it to initiate its own inquiries, the proposed 20th Amendment removes constitutional protection altogether, meaning the commission could be abolished by a simple majority vote in Parliament.[4]  Even if the Bribery commission remains, the 20th Amendment as proposed will strip its power to commence investigations on its own motion.[5]  Finally, the proposed 20th Amendment outright abolishes the National Procurement Commission.[6]

Who benefits from these changes?

The role of the auditor-general is to conduct independent audits of government operations. These audits allow Parliament to scrutinize government spending and “ensure better financial management and optimum use of public resources to maintain sustainable development.”[7]  If the National Audit Commission is abolished, so too is its surcharge power, meaning individuals who misappropriate public funds can no longer be held personally liable. How do ordinary Lankans gain by reducing transparency and accountability regarding governmental use of public funds?

Likewise, the proposed 20A will abolish the National Procurement Services Commission, which serves to “formulate fair, equitable, transparent, competitive and cost effective procedures and guidelines” for government procurements, and ensure integrity, transparency, and accountability.[8]  How is less transparency in big-budget government procurements a good thing for ordinary people?

Short answer? It’s not.

Enhanced anti-corruption measures in the 19th Amendment benefit all of us. While he served as President, Mahinda Rajapaksa commissioned the port project in Hambantota, financed with $1.1 billion in loans from China. The project was built with Chinese contractors, not local labor, and made losses from the moment it opened in 2010.  When Mahinda ran for a third term in 2015, his campaign allegedly took kickbacks from the Chinese port fund as had been reported in the media then. With Sri Lanka unable to afford even interest payments on the billion-dollar loan, the Sirisena government had to default and ceded control of the port and 15,000 surrounding acres to China for 99 years.[9]  Now Chinese port authorities are trying to pressure local farmers to sell their land to make way for a Chinese industrial zone in Hambantota.[10]  Local residents are right to fight and not sell away what belongs to their children.[11]  But without independent audits and a robust bribery commission, the Hambantota debacle is bound to repeat.

Hambantota’s port was not an isolated case. President Gotabhaya was charged in 2016 with corruption for illegally transferring $75 million in state-owned weapons to a private security firm named Avant Garde to establish a floating armory.[12]  He was separately charged with misappropriating Rs. 33.9 million to build a memorial museum for his parents.[13] While presidential immunity prevents these cases from moving forward, independent audit and procurement functions are essential to preventing misuses of public funds.

Today, the government is embarking on huge development projects, bringing more government institutions under the control of Rajapaksa family members and military officials. With no independent audit and no procurements commission, nepotism, cronyism, and corruption will go unchecked. By abolishing the audit commission and exempting the President and Prime Minister’s offices from audit, the 20th Amendment will permit daylight robbery of public funds.  Because these high-ranking officials hold immunity from suit, no person will be able to challenge corruption in court.

So who stands to gain? Clearly the Rajapaksas do.  But what’s in it for the rest of us?  If tomorrow the President wants to sign away all our natural resources or seize private property for a big-budget development project, financed by an onerous loan, who can stop him? What oversight or recourse will we have when public officials abuse our trust? The Rajapaksa brothers tell us that the 20th Amendment, complete with the above-mentioned reforms, is crucial to promoting economic development.  But the World Bank (not to mention common sense) says the opposite—“corruption impedes investment, with consequent effects on growth and jobs. Countries capable of confronting corruption use their human and financial resources more efficiently, attract more investment, and grow more rapidly.”[14]

It is our duty as citizens to think critically about whether the proposed reforms help or hurt us. This isn’t even about the Rajapaksas, although they certainly stand to gain from reduced oversight.  At the heart of any government lies public trust.  We place our hard-earned money and rights in the government’s hands and ask only that it acts in our collective interest. Essential to this trust is our ability as citizens to get progress reports from independent auditors and commissions to see that the government remains on the right track. An independent Auditor-General, Procurement Commission, and constitutionally protected commissions addressing audits and bribery are all vital to make sure our government works for us, and not at our expense.  Sri Lankans must demand that the 20th Amendment strengthen, not weaken, audit, procurement, and anti-bribery functions, protecting their independence from political interference of any kind.

[1] Sudha Ramachandran, Sri Lanka’s Democracy on the Edge, The Diplomat (Sept. 26, 2020), https://thediplomat.com/2020/09/sri-lankas-democracy-on-the-edge/.

[2] Nuwan Senarathna, MR calls for two-thirds majority to repeal 19A, Daily FT (June 22, 2020), http://www.ft.lk/news/MR-calls-for-two-thirds-majority-to-repeal-19A/56-701995.

[3] See generally, Centre for Policy Alternatives (CPA), Summary of Changes Under the Proposed 20th Amendment (Sept. 2020), https://www.cpalanka.org/statement-on-the-twentieth-amendment-2/, at pp. 28-29.

[4] Id. at pp. 27-28.

[5] Sulochana Ramiah Mohan, Commission Removal Compromises Accountability—TISL, Ceylon Today (Sept. 11, 2020), https://ceylontoday.lk/news/commission-removal-compromises-accountability-tisl.

[6] CPA Summary of Changes, supra, at p. 31.

[7] National Audit Office of Sri Lanka, Vision, Mission and Values, http://www.naosl.gov.lk/web/index.php/en/our-vision-mission-and-values (last visited Sept. 26, 2020).

[8] National Procurement Commission, Vision, Mission and Values, https://www.nprocom.gov.lk/web/index.php?lang=en (last visited Sept. 26, 2020).

[9] Maria Abi-Habib, How China Got Sri Lanka to Cough Up a Port, N.Y. Times (Jun. 25, 2018), https://www.nytimes.com/2018/06/25/world/asia/china-sri-lanka-port.html.

[10] Lauren Frayer, In Sri Lanka, China’s Building Spree is Raising Questions About Sovereignty (Dec. 13, 2019), https://www.npr.org/2019/12/13/784084567/in-sri-lanka-chinas-building-spree-is-raising-questions-about-sovereignty.

[11] Id.

[12] Sri Lanka’s Gotabaya Rajapaksa charged with corruption, BBC News (Aug. 31, 2016), https://www.bbc.com/news/world-asia-37234654.

[13] Shihar Aneez, Sri Lanka presidential frontrunner loses bid to get corruption case dismissed, Reuters (Sept. 11, 2019), https://www.reuters.com/article/us-sri-lanka-politics-rajapaksa/sri-lanka-presidential-frontrunner-loses-bid-to-get-corruption-case-dismissed-idUSKCN1VW1UF.

[14] Combatting corruption, The World Bank, https://www.worldbank.org/en/topic/governance/brief/anti-corruption (last visited Sept. 26, 2020).

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Latest comments

  • 2
    0

    Dear Ms Abdul Saroor –,
    .
    Thanks very much for the excellent analysis with a list of references.

    If people would be kept in dark to the very same manner they did it prior to the recent general election, it will be inevitable that the bunch of criminals would get 20A passed in the parliament. Yet today, the protests from so called SANGA COMMUNITY is not that intense. There were diehard patriots in BBS and RAVANA or other fronts, but most of them may still be in their long slumber.

    Rajapakshe CRIMINAL net works are infiltrated in to any corners of the country as a metastasized cancer is spread through out a human body. These criminals networks are highly talented to brainwash the destitute people and the lower middle class people. There are also a number SOCIAL media TV channels that dont want to criticise even if GOTA would become their FUHRER…just becasue they dont care much about the people and future of the country but their pocket filling tactics.

    Unfortunately, the writer has not added anything about CURRENT MINISTER of JUSTICE – Ali Sabry. I thought she would add their thoughts about him too, because the writer is also from Muslim Community of the country.

  • 2
    2

    Where were ll these constitutional experts hiding when Ranil (as he has admitted recently) appointed an ‘Executive Council above the cabinet, a committee outside the Justice ministry to decide on alleged corruption, FCID without any legal basis etc?
    =
    Why did’t they scream as loud asking the Yamapalanas to hold elections?
    =
    The loud mouths thought that was democracy perhaps!
    +
    Please leave to the AG and the government to do what is necessary with the constitution.

  • 2
    0

    M/S Shreen Saroor thanks for your clear explanations for the difficulties the government activities’ Transparency is about to face to under 20A. Voters misunderstood the situation existed in Yahapalanaya. That was mainly because of some party of 19A which apparently attempted to protect Ranil’s job rather than distributing the power equally between all there branches. All Highly developed Western, Japan like nations are highly transparent in their activities. Democracy is not about development only, but a compromise between development, efficiency and basic rights. At this point RTI is spared. But I doubt any good will in that. Time will tell what the rest is going to be.

  • 3
    0

    Asking SLPP MPs who are now dominating the Parliament who are Murderers, Rapists, Drug Lords and Paga Kings to reform 20A is like my Grand Mother’s saying “rain on a buffalo”. Unfortunately even one time respected politicians such as Vasudeva, Susil Premajayantha, Nimal Siripala, Amaraweera, Dinesh Gunewardena etc are all hell bent on supporting 20A as presented in the Gazette. Only one point Vasu opposes that is the dual citizenship.

    On the other hand Sri Lanka has a history where its Judges have sat on various country courts and benches and have been recognized as honorable fair judges. But looking at most of the decisions that have been delivered by the Courts after January 2020 in Sri Lanka, including the Supreme Court, I will not call our judges Honorable or Fair. Its these Judges who are going to hear the 20A petitions. This worries me a lot.

    I am also going to watch how Namal who is interested to be the next President will face the people when the people experience the downfall they face due to 20A in time to come.

  • 1
    0

    Very sensible.

    But SL has no sense, no moral compass and no common sense. Just a junk island floating in the sea with idiots at the wheel.

  • 0
    0

    Sri Lankans must demand that the 20th Amendment strengthen, not weaken, audit, on deBt Sri lanka is a country trapped in debt External debt makes up more than half of gross domestic product, It is uNaffordable for an to the country that doesn’t bring any economic returns, compelling us to look at options, there are no natural customers on its doorstep. Freedom Is Meaningless under Extraordinary Debt the future has to pay. Under new Constitution what is said or provided a strong resolve to this. Will have to payback, debt and liabilities have to constantly decreased.

  • 0
    0

    Is a constitution really necessary for Srilanka. Why can’t every elected government have their own way with the elected members as long as they have a majority 2/3 or otherwise.? As it is, our constitution is being changed as per the whims and fancies of the president/prime minister and their henchmen A lot of time is wasted by all concerned. Cours are saddled with so many FR petitions with no end in sight. I know of an FR petition hanging on for the past 9years. It is not known whether the judges are able to act impartially? If not what purpose does it serve to have a COURT of JUSTICE and cheat ourselves?. A new edition of the constitution is printed every time a new government comes into power. We seem to be living in a world of illusion.

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