Sarath Silva: U-Turn But Here’s Why
Former Chief Justice Sarath N Silva, arguably one of the most controversial Chief Justices in the history of judicial Sri Lanka, explains his take on corruption and politics. The two are he says inter-related, although there are enough of laws to combat corruption. Chief Justice Silva lamented the lack of a proper procedure for politicians to attract funding saying that transparency was the real loser.
His thoughts on:
Corruption and political funding:
Corruption has its beginning soon after any election was announced because candidates become magnets for people with money as is evidenced by the huge sums of monies spent on their campaigns:
One of the issues is that there is no law on electoral funding or financing. So that is a problem. Especially with this preference system of voting, the electorate became a huge district and for a person to get preferences in the district has to spend a huge amount of money. Everybody attracts funding I think Mr. Gammanpila had a fund – Rs. 100 or whatever but whatever it is, that shows the magnitude of the expenditure.
So we had under the old act/ ordinance, a requirement that every candidate had to submit accounts. Very strangely that provision was quietly dropped. Every person who contested had to submit his accounts to the commissioner. At the least some accounts were obligatory. Now that has been quietly done away with. Because I think the politicians found it rather inconvenient. Maybe accounts would have been false but whatever it is there is an account. So that has been dropped.
Probably all contributions are illegal in someway but the fact is that there are contributions. Now even the Rs. 100, that’s also a contribution. So these have to be regulated.
Now if we are going to have a clean election these things have to be regulated so that the contributors can have a fair say. We can contribute to shall we say all parties as an exampleyet that’s a transparent process. Then the companies or business establishments can put them down as part of their expenditure.
Itwill not be tax free deductible but it’ll be an expenditure that should be listed. I think that most countries have this law and there is a requirement that both the donor and recipient must be accountable. I think the old provisions have to be brought back with some modifications if it is necessary. This way all the contributions can be made in a transparent basis so that there is a proper account for it.
Now what happens is businessmen do make contributions. However much we say no, they do. And then the other party has a perception that this man is supported by X and there’s a witch-hunt.
On the issue of seeking political vengeance:
When there on that X and Y have contributed to party A then there is an incidence of victimisation when another party wins and X and Y have not contributed but a perceived to have given the other side so face victimisation. That’s a very serious thing. So the businessman feels victimised. Sometimes he may not have contributed but there’s a perception of contribution. But if there’s an opportunity of contribution, that should be made transparent. That’s a very important thing. And the political party accounts should be known.
On black money being made available as political funding:
When there is no system for transparently making a contribution for ideological reasons, there is a real possibility that ‘black money enters the political arena
In the older days not only MP’s but others also had to declare including losing candidates. So that was a very useful process. So we have to have some kind of account. This amount you have to keep for posters, this amount we have spent for advertising, this amount we have spent on maintaining officers so there’s some kind of accounting process. I think this can be easily worked out. The Elections Commission can work out; these are things they should work on.
Now I think at the tail end of this parliament it may not be possible to get all MPs to agree on this. Now you can see what a hotchpotch the 19A turned out to be. I think if we try to pool in this there will be no law that will emerge. But these are things that should be worked out and should be done.
When there is a system for contributions everyone will be satisfied. Another place where lot of corruption takes place is in this single source award of tenders. No prior announcement just an award.Most of these things are single sourced which are not responsive to any kind of tender process.
On the slow progress of accountability and investigating contracts by the new government:
There is a perception that the government in the campaign promised lot of investigation and would take action once elected. Now with regard to construction, specially the roads and highway projects, I also thought when I read things that whoever who made the allegations had done his homework.
Now you can’t just go by distance and say in country X this distance has cost so much, in this country the distance has cost four times more. Really you have to study the bill of quantities; I have been doing prosecutions and this kind of analysis, you have to study the bill of quantities and say item by item, this kind of filling, this is the contracted normal rate.
But here to this contractor you have paid twice or three times that amount, for laying the concrete this is the standard rate so I don’t think anybody had done this detailed study of the bill of quantities and looked at the rates charged.
On the FCID:
As Mr Ian Wikramanayake– Bribery Commissioner in Bandaranaike’s government was fond of pointing out there must be substantial evidence to prove Bribery and corruption.That’s a basic thing, money must come to you or to your nominee. Now if you can’t show that, ‘ that’ is your nominee then of course there’s no corruption at all.
For example in the Basil Rajapaksa matter, he has been investigated under the aegis of the public property act. He was a Minister. There seems to be a problem in that the public expected something different and the former Minister is charged with something else.
However in this case the money distribution was a welfare measure. That can come under some election offence or something like that. That’s a distinctly different thing where you try to bribe the voter.
On the issue of Good Ministries and others:
Good ministries mean where a lot of work that can be done. Now shall we take the Ministry of Education that is not a good ministry: because there’s very little money. Infrastructure development is almost zero. The government is spending solely on recurrent expenditure. So that is not a good ministry. But if you have a ministry with regard to where there’s construction of highways or that kind of thing where there are contracts to be awarded where there’s infrastructure spending, then that becomes a good ministry. In short a good ministry’ attracts plenty of funding. Right along Ministries with regard to Mahaweli Development have been all good ministries, that’s past history. Where there’s procurement, where there are purchases that becomes a good ministry.
Legislation to control political contributions:
This is vital for us. This whole thing has some source, which is a contact between the person who’s doing the contracts, the businessman and the politician. There’s no corruption without these two persons. This is where corruption meets. Now we have gone past the days of corruption in Ian Wikramanayake’s time like where some patient pays money to a doctor, we have gone past that where a person has to pay the gramasevaka to get a certificate. Now that has become the norm to get a timber permit. Now I think we have to move beyond that. Those things can be taken care of by other means.
This is why it is essential for laws that permits legitimate donations and to legitimately and transparently accept these donations. All this must be on the basis that the donation must be accounted for.
So that is a very necessary thing that most countries have. I think there are stacks of laws on this.
Former President Rajapaksa, like a boxer waiting in his corner:
The thing is President Rajapaksa, I don’t know if it is necessary to call him a stalking horse, he is a political animal. I have known him for a long time, I have known him closely. The distances have varied but he’s a political animal, he lives politics. And I think he has the common touch, there’s no gain saying that. If there’s an audience President Rajapaksa can make great headway he can move in any audience. He knows the Sri Lankan community well. Whether he had overstayed his vision is a different question
On controversy and President Chandrika Kumaratunga:
When I took over the office of Chief Justice I set certain targets with regards to infrastructure, development of judiciary, computerisation, elimination of delays all those things. All those targets were met to the best of my ability. Kumaranatunga was the one who appointed me. Well she had some reluctance in appointing me as well, she explained to me that there were protests. So I said if there’re protests don’t appoint me, it’s simple find another Attorney General. She said no no I have no such problem you go ahead, you can do what you want. So I said it’s on that condition even as Attorney General I used to say you can’t interfere in the work and she did not interfere. But as Attorney General I could go and meet her but as Chief Justice I couldn’t and I thought that it was best to keep my distance.
These are people even with Mahinda Rajapaksa I kept that distance. Soon after he was sworn in I stopped seeing him altogether. So there are misunderstandings because as the Chief Justice you have to do the judicial work properly. Some judgments will be in favour of the government some judgments will be against the government. Now the opposition also didn’t realise this now when there’s a judgment in favour of the government that goes on merit so when there’s a judgment in favour of the opposition it goes on merit. The opposition must realise this.
On how well the Middle Path is doing in Sri Lanka:
The Middle Path is not doing too good. If we had done well we wouldn’t have had all these problems. This Middle Path is not doing well enough. It was there during the time of Mr D S Senanayake, Dudley Senanayake even Mr Bandaranaike to a certain extent. He was a person of the Middle Path. But now extremism is creeping in.
