Sri Lanka Today: Policy Challenges and Dilemmas

Prof. G.L. Peiris

Mr. Chairman, distinguished colleagues of Jawaharlal Nehru University, students, I am very happy to be here with you and share my thoughts on some of the challenges that both our countries are facing. This kind of interaction with the academic and professional community is very important because we often forget the commonality of the whole range of issues that are attracting the attention of policy makers, politicians, and academics. There is constant exchange of ideas and involvement among different countries regarding the challenges confronting them. That is the way to enrich enormously the sum total of our knowledge and our insight into contemporary politics.

For example, most Indian newspapers gave a lot of attention to the statement of Prime Minister Manmohan Singh with regard to quotas in the corporate sector. The Government of India is trying to address matters connected with social equity. Social equity is the sheet-anchor of some of the policies that the Prime Minister is articulating. A response by Mr. Birla on behalf of Indian industry shows that the Indian corporate sector is suddenly prepared to do everything possible to improve the level of education, to contribute to the refinement and fine-tuning of skills, but that jobs must be based on merit. So that is the view of Indian industry, as reflected in the Indian media. These are issues that have been worked out in detail in many countries, including Sri Lanka.

Take the quota issue, which is on centre stage in India today. What is the whole object of quota? Quota is a temporary expedient for achieving social equality in circumstances where you feel a particular segment of a community has been deprived of advantages that they are entitled to on a basis of equality with other segments of the community that have enjoyed all these advantages. In Sri Lanka the problem arose with regard to education - seats in the university, admission in tertiary education. It is felt in Sri Lanka that an overwhelming majority of seats were held by students coming from the privileged background, from the urban sector, particularly in the professional courses - law and medicine. The poor students had a distinct disadvantage in open competition. Uninhibited competition might not be an instrument for social justice and there was a need to carve out a system founded on quota. So twenty years ago the system was evolved of giving weightage to students from the rural sector. Say a student from a highly privileged background, from one of the best schools, gets 70% in the examination held to select students to send to universities; his counterpart from a rural background gets 63%. A system was put in place to enable the student with 63% to be admitted in preference to the student from the urban background with higher numerical marks in the open competition. The system was deliberately and consciously worked out to address the problem of social inequality.

Predictably, this move was challenged before the Supreme Court of Sri Lanka (Senaviratna vs University Grants Commission) on the ground that our Constitution has a specific provision with regard to equality of treatment. The argument raised by a student who had received higher marks and was denied admission was that the whole system practised the denial of merit; it struck at the very root of justice and equity. The Supreme Court rejected the argument and upheld the proposed system. The Court drew attention to the celebrated reflection by Aristotle in Nicomachean Ethics that there is 'as much injustice in treating equals unequally as in treating unequals equally'. If two groups of people are inherently, intrinsically and demonstrably unequal, then to try to treat them equally is denial of justice. In other words, justice is not a standard, immutable norm but gets meaning only in relation to context. So the Supreme Court said that it was necessary to take into account the reality of the situation. The system as devised and formulated was not in any way an infringement or violation of equality enshrined in Article 12 of the Constitution of Sri Lanka.

That was an imaginative and creative interpretation of the Constitution on equality. The relation between that situation and the developing ethnic problem in my country was this. The majority of the students in most of the professional faculties were Tamil speaking and they dominated other faculties of education purely by merit. When the new system came into operation, it was found that the number of Tamil students was reduced drastically. An increasing number of Sinhala-speaking students occupied places in the universities that were previously occupied by the Tamil community. It was difficult to convince Tamil-speaking students that it was not the intended result of the system. In actual fact what the government of Sri Lanka perceived was the rural versus urban divide. But it was seen as an ethnic divide between the Tamils and the Sinhalese and this was aggravated. So there was a relationship between these issues. This is why I say that there is a reservoir of experience in our different countries and we can learn from it to mutual advantage. What I gave you is just an example. A common phenomenon in most of our political cultures is an adversarial, confrontational tradition. I would venture to suggest that you will see most of the problems in Sri Lanka as they are in India.

India has succeeded in identifying certain sets of issues that have to be treated differently from the run-of-the-mill political issues. In such issues there has to be greater consensus in respect of national well-being. India has found a certain way of dealing with problems that is not based on rancour, acrimony, and adversarial conflict between the major political parties. There are certain exceptions India has been able to work out. But Sri Lanka has found it very difficult. We are now paying a heavy price for that. There are problems in Sri Lanka with regard to arranging the next set of dates for talks with the Tamil Tigers. The Tamil Tigers are saying that the eastern commanders have to talk to the LTTE leadership before the second round of talks could take place in Geneva on the scheduled dates - 24th or 25th of April. But what is being presented as a logistical issue is really a political issue. It is very important to keep that in mind so that it is easy to understand the two aspects of the problem. It is not a question of where to meet or how to meet or what mode of transport to adopt. A set of political issues underpins the entire controversy. Those political issues are becoming very difficult to resolve because of the dramatic divide in the Sri Lankan political spectrum. There are radical elements from one end of the spectrum to the other end. These radical elements argue that there cannot be any departure from the unitary state; that the unitary state is sacrosanct and inviolable. We have, in a way, become slaves to terminology, to labels.

But where does the unitary state end and the federal state begin? There are shades of grey; it is like a rainbow. So it is not logical to be obsessed with terminologies. Unfortunately, this led to dramatic polarization and disappearance of middle ground. The radical elements are saying that the present cease-fire agreement, which was signed on 22 February 2002, has to be radically changed because it is one-sided and unfair and injurious to the interest of the nation-state. Of course, the contract is a bilateral instrument and any change is being resisted by the LTTE, which argues that the need of the hour is the implementation and enforcement of the cease-fire agreement rather than modification or amendment of it. A debate is going on in Sri Lanka with regard to involving Norway as facilitator. Some radical elements say that Norway is biased and needs to be replaced. That, of course, will result in the breakdown of the process, because parties cannot talk directly to each other - the degree of acrimony is too great - and no other country will step into Norway's shoes. These are issues that cannot be resolved because of the polarization of the evolving political culture of the country.

The other problem is the role of Parliament as an institution. How do you make it effective? This institution goes to the heart of freedom and the vibrancy of the system. In Sri Lanka, unlike in India, we have an executive Presidential System which has eclipsed Parliament. Parliament is no longer a centre or focus of public attention. It has been largely marginalized. One of the matters receiving attention in our country is: how do you breathe new life and energy into Parliament? How do you make the executive responsive to the priorities and sentiments of the legislature? This is necessary, because otherwise there is a danger of tyranny of capricious executive action. All other institutions fade into insignificance against the overarching executive presidency. So, it is essential to strengthen the legislative organ of government. We have found through experience that the best way of doing this is to strengthen the committees of Parliament, particularly committees like public accounts committee, which serves as a watchdog of public finance. But the entrenched party system deprives Parliament of that capability, because the dominant party controls Parliament and the individual Member of Parliament is relegated to the background and becomes a cog in the wheel. To empower him, one must strengthen the committees. Then there is a suggestion that there should be a convention or written rule that gives the opposition party the right to preside over the parliamentary committees that have vital functions with respect to public finance. Giving all these committees to the government means that they cannot perform any really useful function.

Sri Lanka is going through a soul-searching and critical debate with regard to the political system. Sri Lanka adopted universal adult suffrage in 1931. The Donoughmore Constitution of 1931 and the Soulbury Constitution of 1946 advocated majoritarian democracy in a unitary state. From 1931 till 1978 we had the first-past-the-post system. First-past-the-post voting, more correctly known as simple majority voting, is most popular throughout the democratic world. By 1978 we had become very disillusioned with that system. The Sri Lankan experience was that the first-past-the-post system does not meet with democratic criteria. It produces arrogant governments.

In 1977 we had Jayewardena as President who had five-sixths majority in Parliament - a total majority which marginalizes the opposition. Because of the growing disillusionment of that system in 1978, a proportional representation system was brought in and we adopted the presidential-parliamentary system. This largely unitary system, as in the case of the French presidential system, concentrates power in the President. The unicameral legislature is composed of 225 members who are elected by proportional representation. Even then, there are fundamental problems in the system. One is the absence of close contact between the Member of Parliament and his constituency. The voters do not know their actual representative in multi-member constituencies and the representatives do not bother to address the problems faced by the electorate. The party hierarchy and the senior leadership play a vital role in preparing the list in a district electorate. This has resulted in nepotism, favouritism and various other undesirable considerations. Also, the absence of by-election in the present system denies the opportunity for voters to show their approval or disapproval of the incumbent administration. The system enables the parliamentarians, once elected for a term, to ignore public accountability and work arbitrarily without check.

Another problem is the preferential voting system. Each voter can cast his vote either for just one candidate or mark his preferences for three candidates. To win the poll, a candidate would have to cross 50 per cent of the valid votes cast. Otherwise, a second count is held in which the second-preference votes marked in favour of the two leading candidates is taken into account. In all previous elections the leading candidates have been declared elected after the first count. Nevertheless, the new system has perpetuated rivalry at both inter-party and intra-party levels for nomination during the preparation of the list of candidates and during election campaigning, and in the post-election period for seat allocation from the national list. In practice, the candidates work for their personal agenda of electoral victory rather than for party policies or interests. This brings out the worst in human nature. There is a titanic conflict between the prominent candidates within the party and it shakes the foundation of party unity and solidarity. All these problems are connected with proportional voting system. Now we are looking into a hybrid system based upon the German experience. That is where half or one-third of the members of parliament are elected by the first-past-the-post system and the rest by proportional representation.

When a government gets elected, it controls everything - public service, police, etc. About five years ago we had promulgated the 17th Amendment. The amendment provides for a ten-member Constitutional Council. The Speaker of Parliament, the Prime Minister and the Leader of the Opposition would become members of the Council by virtue of their positions. The Prime Minister and the Opposition Leader will jointly appoint five members, three of whom would be from ethnic-minority communities, in consultation with the MPs of minority community parties. Another would be appointed in consultation with the MPs of other opposition parties. The last member would be a nominee of the President. The amendment also provides for the appointment of independent commissions on Elections, Police, Judiciary and Public Administration. The Constitutional Council recommends the members for the four commissions, which would have the legal basis for functioning without interference from the executive. This all-important Council was required to recommend the appointment of members and chairpersons of the following Commissions: Elections Commission, Public Service Commission, National Police Commission, Human Rights Commission, Bribery Commission, Finance Commission and Delimitation Commission. As stated earlier, the rationale was to safeguard the independence of the Commissions, to ensure that they did not become playthings of the politicians in power; to make certain that there was justice and fair play. For instance, the Public Service Commission is vested with the powers of appointment, promotion, transfer, disciplinary control and dismissal of public officers and is insulated against outside interference. If only this interference could be ended, meritocracy would be enthroned and justice would not only be done but would be seen to be done, infusing credibility in governance.

The next important issue is bribery and corruption. I was happy to see in your newspapers about filing of assets by the candidates before the Election Commission. This system is absent in Sri Lanka. When I became the Minister of Justice in 1994, I brought in new legislation in accordance with the needs of modern times. The most conspicuous among them were the Bill for the Permanent Commission for the Prevention of Bribery and the National Child Protection Authority Bill. The commission has a tenure of five years and cannot be re-appointed.

Another important issue is the role of the media. There cannot be a vibrant democracy without an active media. How do you achieve this? In a decision to be more open with the people, the Government is preparing to introduce the Freedom of Information legislation. We do not expect that the public will descend in droves to scrutinize the work of Government. But we do expect that the media will act as intermediaries, and use such freedom of information to better inform the people of the work of government. That is why we are currently working on a new Freedom of Information legislation. It is taking time to formulate; but it will be one of the most important pieces of reform legislation that this Government intends to pass.

The draft Freedom of Information (FOI) Act, approved by the Cabinet in mid-December 2003, could be fairly evaluated as the most liberal Freedom of Information draft yet to come out of any South Asian country. It gives every citizen the right of access to official information which is in the possession, custody or control of a public authority and provides that the law will prevail over any other existing law that is in conflict. In that sense, it affirms the principle of maximum disclosure. The Draft Act attempts to balance the right to information with the reasonable need for secrecy, and provides that catch-phrases such as national security and territorial integrity cannot be used indiscriminately by government officials to deny information. Thus, for example, though information can be shut out on grounds of serious harm to the defence of the State, disclosure is permitted if it is vital in the public interest. A similar caveat applies to pending policy decisions by the government. All information over ten years old is available for scrutiny. Then again, once enacted, the Freedom of Information Act will prevail over the provisions of any other written law already in force, though it will not apply where such pre-existing laws prescribe a secrecy oath with regard to members of bodies created under those laws. Accordingly, it will negate the obnoxious effect of archaic laws such as the Official Secrets Act No. 32 of 1955 while providing for legitimate conditions of secrecy that are imposed by modern laws on officials of particular specialised bodies with regard to, for example, pending investigations.

The Bill imposes a duty on all Ministers (including the President when remaining in charge of any Ministries) to make public records and other information specified in its provisions. A similar duty is imposed with regard to local and foreign-funded projects within certain monetary limits. All requests for information first go to an Information Officer appointed to every public authority with an appeal to the Freedom of Information Commission that is appointed under the law. The Commission comprises three persons having security of tenure and appointed through a consultative process between the President and the Constitutional Council.

If you are supportive of the role of the media in a democracy, then you should encourage investigative journalism by making it possible for sources of information to be regarded as confidential. In Sri Lanka, a look at the Sunday papers during the last three or four months will reveal that some of the most refreshing developments taking place with regard to the integrity, rectitude and probity of public institutions emanate directly from work done by fearless investigative journalists inspired by an intrepid approach to contemporary issues. The laws of most SAARC countries are inadequate; there is insufficient protection for confidentiality in respect of sources of information.

Then comes the question of social justice and fundamental rights. In Sri Lanka, unfortunately, the tradition of public interest litigations has not developed to such an extent. If you are serious about the enforcement of rights and values, it is necessary to change the laws, the traditional attitudes. The approach of English Judge Lord Denning that only the person with a grievance can go to court and that if the aggrieved man is too poor or too uneducated, nobody else can do it on his behalf has been the hallmark of traditional justice. Lord Denning said that if anybody else tried to do it, he would be firmly rebuked as an officious interloper and a busybody. Pioneers like Chief Justice Bhagwati have changed all that and revolutionalised judicial attitudes to fundamental rights litigation. They have encouraged such intervention within appropriate parameters. That is very refreshing.

A famous sociologist in Sri Lanka who held a chair of Sociology at Princeton University, Prof. Gananath Obeyesekera, did a survey in Sri Lankan villages. He asked the villagers what they would do if they were deprived of the land because of encroachment by the government. They said they would go to the temple and pray. Then the Professor asked if they would not take advantage of legal remedies. They were aghast at the suggestion.

Therefore how do you ensure actual implementation and enforcement? That is necessary, because if you do not do so, it will encourage a deep sense of scepticism and cynicism. When you raise expectations to very high levels and there is a complete failure of delivery, the inevitable consequence is cynicism. With regard to public institutions, that would be the most dangerous thing that could happen in a democratic polity. Once you articulate these value systems, I think there is an attendant obligation to ensure that there is a reasonable degree of implementation or enforcement.

The focus, particularly in our part of the world, must be on the remedies. It is important to bear in mind that we also have to concentrate on access to justice. You can have the most impressive documents, but they would make very little difference to the lives of people unless those who are disadvantaged, who lack pecuniary resources and social influence, are able to take their grievances before the judicial forum that has the power to grant a remedy. This means that legal aid must be really effective; otherwise expectations will be largely unfulfilled. So, access to justice is very important and there you have to look at not just the Supreme Court. I think one of the flaws in the Sri Lankan system is with respect to the fundamental rights jurisdiction of the Supreme Court. That is the court of first and last resort. You go to the Supreme Court on a fundamental rights matter; you can't begin lower down. The ombudsman is a very valuable mechanism in that regard.

The next issue is the educational system. The root cause of many other problems is the compartmentalization of the education system. In schools or universities everything is separated by walls. Even the cultural and social life is entirely segmented and separated. The root cause is language. When I was an undergraduate at Oxford University, we made friends on the basis of shared values. We were not overly bothered about racial identity. That is because the English language permitted us to speak spontaneously with others. Tragically, in my country it is not the case anymore. Sinhala students are not able to converse with Tamil students and vice versa, because they do not know each other's language and are not comfortable with the use of the English language. Now if you don't know the other man, he appears to be a strange human being. Initially there is no hatred, but over time it matters. Separation and segregation has developed as an unintended result of the educational system. That has to be addressed. Also, if there is a mismatch between expectation and delivery, it is a recipe for social unrest.

As Vice Chancellor of the largest university in my country, my major challenge was to preserve standards in an environment of enhanced democratization. When I was an undergraduate in the university in Sri Lanka, we had Latin studies in our syllabus and we had to answer a paper in Latin. There were only five schools in the country teaching Latin. In schools of that kind you can maintain standards. The question is how you can maintain quality with democratization. After completing their education, students must find employment. If they are unemployed or are forced to do jobs which are not commensurate with their education, a high degree of indignation is created in the social order.

In the celebrated words of Harold Laski, 'Eternal vigilance is the price of freedom'. In our societies we must not abdicate everything to politicians and then complain when things go wrong. There must be continuity on the part of civil society. There must be a high degree of public awareness of the value systems that are sought to be embodied in the constitutional arrangements. You need a vigorous press. You need trade unions; political parties. You need democracy within political parties. You need certain regulatory mechanisms with regard to the finances of political parties. There must be access to justice. Some degree of egalitarianism is necessary to make a success of some of these principles. We must have a holistic conception of human development, and the political and economic structures that come into being must reflect that commitment to pluralism, secularism, and the functioning of representative democracy. Apart from intergovernmental contact, there must be contact within civil society.

I have tried to share with you the complexity of the problems in my country, some of the challenges we are facing and the approaches that we are adopting to achieve their resolution. That, I think, is the way to go and that is basically the lesson to be learned from the Sri Lankan experience. We would like to look at what has happened in other countries, not to reinvent the wheel, but to adapt the solutions that have been adopted elsewhere to suit the combination of circumstances that exists in my own country.