New ‘asses,’ same ‘liquors’

By Charitha Ratwatte – Financial Times

This column is not about donkeys. It’s 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 politician’s unaccountable wealth, busted up on elections to subvert the voter’s 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 Khan’s accompanying act Jacqueline Fernandez. I hope readers would have read play write Ruwanthi de Chickera’s 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 John’s 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 today’s 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

Let’s 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 People’s 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 world’s 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 Party’s 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 Republican-controlled 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 regime’s 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 another’s 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 Lanka’s 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 nation’s discretion. Such checks and balances on the power of the nation’s state’s 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.)