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Accountability needed to make debt restructuring more equitable

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by Jehan Perera

President Ranil Wickremesinghe notched up another achievement when Parliament ratified the Domestic Debt Restructuring (DDR) programme with a majority of 60 votes, with 122 members voting for and 62 against, with 40 abstentions. Parliamentarians who would need to think about their re-election prospects would have been reluctant to vote for a programme that imposes more burdens on an already burdened population.

But the President stood his ground, and by his vision of the country’s economic future, and the rest of the government acquiesced. The President has been successful in steering the ship of state into calmer waters. He is also setting in place laws, like the proposed Anti Terrorism Act, the Broadcasting Authority Bill and the anticipated NGO Act, which could be used in a sophisticated way to silence critics and to immobilize them.

Now that the ship is nearing safe harbour, and the necessary second tranche of IMF support, the challenge for him will be to ensure that some of the more ambitious members of the crew do not think they can manage without him. It is frightening to think of how the Anti Terrorism Act, the Broadcasting Authority Act and the NGO Act could be used if that arsenal of repressive laws was to be in the hands of those who may choose to act in the manner of pirates.

President Wickremesinghe took charge of the ship of state after it had been driven into the midst of a cyclone by another skipper and his crew. In both 2001-04 and again in 2015-19, the President over-estimated his ability to outwit and outmaneuver the others he was sharing power with. On this occasion, too, there is a danger of a repeat. A foretaste of things to come was displayed by the absence of some of the top leaders of the ruling party when the vote was taken.

The passengers on the ship of state need to be treated better so they will not support a change of skipper in the case of a revolt by the crew. There is no question that the burden of the DDR programme has been laid on the masses of people. It comes after an initial inflation rate of 70 percent last year that virtually halved the savings of the people has been followed by continuous inflation although now at a lower rate, said to be around 12 percent last month. In its DDR plan, the government has taken care to safeguard the remaining half of the people’s savings by treating the banks favourably.

In so safeguarding the banking system, the government has also safeguarded the interests of the corporate sector who generate new wealth. It has also acquiesced in the unjust argument of international creditors that the local population should shoulder the pain of losing part of their wealth. The international creditors knew the risks they were taking when they invested in Sri Lankan bonds, they did so voluntarily because of the huge profits they could make. By way of contrast, the Sri Lankan people who are now called upon to share the burden of debt restructuring with them had no such options while those who were responsible for bringing Sri Lanka to this sorry state are continuing to benefit from the reforms being instituted.

INEQUITABLE TARGETING

It appears that the main casualty of the DDR programme are the pension funds (EPF and ETF) which the government established as one-time payments made at the time of retirement and as an alternative to providing people with a lifelong pension. Although Sri Lanka has long prided itself on being a welfare state that provided everyone with free health, education and foodstuffs (at one time), it never provided universal social security so that those who have no jobs or who are too old to have jobs can survive with a measure of dignity.

The government’s decision to target the EPF and ETF pension funds for a 30 percent tax is unjustifiable, even though the government has tried to justify it. The government has stated that the pension funds have only been taxed at 14 percent whereas the banks have been taxed at 50 percent. The pension funds are being offered a Hobson’s choice.

Thomas Hobson (1544–1631), a horse owner in England, is reputed to have offered customers the choice of either taking the horse in his stall nearest to the door or taking none at all. The pension funds are being offered the option of having their income taxed at 30 percent which is more than double their current rate or agreeing to have their investments in government bonds receive much lower interest payments.

The problem with giving the pension funds the option of paying high tax rates or obtaining low interest rates is that pension funds consist of aggregates of individual entitlements which, if they were taxed individually, would be subject to only a low level of tax. This is as it should be, as these relatively small EPF and ETF entitlements, a few million rupees for the vast majority of EPF and ETF holders, are going to be their only savings for them to live the rest of their lives. Sri Lanka does not provide lifelong social security or pensions (other than to public servants) like most other civic-minded countries do.

In addition, contributions to EPF and ETF have been made after paying taxes prior to making remittances. From this perspective, contributors are being taxed twice.

The unfairness of using the EPF and ETF funds as the way to reduce the government’s debt obligations is made worse by two omissions. The first omission is that the government is not taking measures to recover the massive loans given by banks, particularly the state banks, to errant corporate entities and politically connected individuals. The second omission is not taking measures to recover stolen assets. This was a key demand of the protest movement last year that brought President Wickremesinghe unexpectedly and serendipitously to power.

NO ACCOUNTABILITY

A key opposition leader Prof G L Peiris has summarized the injustice of the government’s DDR programme. He has said of the investors who are being protected that “Their motive was to make use of the perilous state of our economy to make a killing. They sought unconscionable profits in as short a time as possible. While the rates payable to these wealthy investors are left untouched, interest to be earned by the working people who are beneficiaries of the EPF has been reduced by the rate of income tax payable by the EPF being increased from 14 percent to 30 percent if fund declined to participate in the seriously flawed DDO exercise,”

Newspaper editorials have made these points. The Sunday Times has said “These economic reforms will need to extend for many years to come for favourable results to be seen. This may be only phase one of the DDO. The question every citizen asks, however, is; why are the twin ‘untouchables’ – the ten big debtors – the big boys, the local Robber Barons, who have borrowed multiple billions from local banks and not settled their loans but who continue to laugh all the way to the banks are not touched; and is it because of their political connections. And why those responsible for the country’s economic misery are issued with a ‘Get out of Jail’ card as well?”

The Island

newspaper in its editorial has said “The EPF by statute was required to invest a vast majority of their funds in government securities which till Thursday were considered gilt-edge investments. The shenanigans of the EPF in investing in the stock exchange and being used as a victim of pump-and-dump scams are well known. No one has been brought to account for those misdeeds, but millions of taxpayers are once again asked to share the pain of nursing a bankrupt nation to viability.” What is notably missing in the government DDR programme, and in its overall governance, is accountability.

Since the war ended bloodily on the military battlefield, Sri Lanka has been hauled over the coals in international human rights forums, especially the UN Human Rights Council in Geneva. The missing dimension there, too, is accountability for serious human rights violations. The point of going through the transitional justice process of truth, accountability, reparations and institutional reform is to ensure non-recurrence.

The same holds true for economic crimes, such as those that brought down the economy of a country that had reached upper middle income status in 2018 by those who showed no responsibility in terms of protecting national security and the national economy. The ship of state needs a new crew who would be accountable to the passengers so that the vicious cycle of inefficient and dishonest governance, corruption and economic collapse will not recur.



Opinion

Murder of Ehelepola family, Bogambara Wewa and Sightings of Wangediya

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Ehelepola Walawwa

Preamble and the Accused

Ehelepola tragedy has twists and turns; I start with the African proverb, “Until lions have their own historians, the history of the hunt will always glorify the hunter.” In this story, hunters are the Kandy king, his first Adigar Ehelepola, and the British colonial government.

Within a few years of becoming king of Kandy in 1798, Sri Wickrama Rajasingha began to feel his unpopularity spread across the country and right under his nose among the Kandyan elites. He murdered captured British soldiers receiving hospital treatment in Kandy and let Major Davie die in captivity. He executed his Prime Minister, Pilima Talawa Sr., in 1812 for suspicion of colluding with the British, and, as John D’oyly revealed, was envious of the former’s alleged schemes to get his son married to the granddaughter of the late King Kirthi Sri Rajasingha (1747-1782) to establish a blood relationship to royalty.

The king then appointed Ehelepola, nephew of Pilima Talawe as the First Adigar. Continuing his wanton execution regime, he touched a nerve in Kandyans with the sacrilegious act of killing Buddhist monk Moratota Paranatala Unnanse, accused of spying for John Doyly, whom Gananath Obeyesekere called “Master Spy.” The King’s reign was an oppressive, oligarchical system consisting of himself, his family, the Chiefs, and some in the Buddhist sacerdotal fraternity in the Kandyan country.

Sri Wickrama Rajasingha was an illegitimate king, with a dubious claim to a direct royal bloodline, which weakened him as a ruler. As we know now, he was ruling the kingdom with borrowed time. Six months after the Ehelepola killings, he was deposed by the British, the empire-builder with its full power, passion, and double dealings.

The King had an irritable and short-tempered demeanour. In 1816, even as a prisoner of the British being conducted on board HMS Cornwallis, in the morning of the 26th day at sea, William Granville, the British Civil Servant heard him screaming with dreadful passion, hacking and hewing into pieces with a hatchet an extra bedstead in front of his cabin kept for him to sit occasionally. The reason for his fury was that one of his attendants had slept on it the previous night, disgracing his honour!

The Murders

Ehelepola Nilame. Los Angeles
County Museum of Art.

The king was accused of Ehelepola murders, and Ehelepola Adigar stands as an accessory by failing to prevent the crime and willfully refusing to help the victims by abandoning the scene.

Headwinds of the crime started when Ehelepola Adigar, Dissave of Sabaragamuwa, was accused of the stabbing deaths of two koralas, under him. When the king ordered him back to Kandy for questioning, he refused. In May of 1814, the Adigar, fully aware of what the king, with his sinister bearing, would do to his family, sealed their fate by throwing away any chance of saving them, and escaped to Colombo seeking British protection.

The enraged king took hostage Adigar’s wife, Kumarihamy, and her four children, along with a few relatives, until the patriarch’s return. After hearing a rumour that the Adigar was planning to spirit away the family from the prison, the king, breaking principles of elemental justice, decided to put his family to death at a public event.

Ehelepola’s misogynist disposition is evident in an old Ola book, recently found in Padiyapelella. In his Mahanuwara Yugaye Aprakata Withthi by historian Chamikara Pilapitiya includes a statement Ehelepola made right before he returned to Kandy with the British army. He bemoaned the loss of his two children, probably the two sons. He added that they were like his two eyes, and, without them, he asked what the use of titles and a good life, referring to rumors that he was planning to get the kingship with British support. He said no word of sorrow for his wife and two daughters, who perished together with the two sons!

In Interior of Ceylon (1821), John Davy, the British Army Doctor (1816–1820), provided the most accurate description with firsthand information of the beheading of the children and the drowning of their mother. The vengeful king summoned Kumarihamy, her four children – two sons, 11 and 9 years old, a daughter, and a nursing baby, and the son of Adigar’s brother and three women to the execution stage near the Natha and Maha Vishnu devale by the palace.

After analyzing contemporary writings, including D’oyly’s Diary, Gananath Obeyesekere has determined the execution date as May 21, 1814. On this day, executioners brought implements of the crime – a wangediya (rice mortar) and a pestle. King then ordered them to decapitate the children first and place the severed heads in the wangediya. When the elder son Lokubanda dithered, his nine-year-old brother Maddumabanda stepped forward and uttered the now legendary words: “Brother, fear not. Let me show you how to die.”

The wadakayo decapitated the children and put their heads into the wangediya and handed the pestle to the agonizing mother. The king ordered her to pound the heads. If she did not, he threatened with an ultimatum – banishment in marriage to Rodiyas, the untouchables in the country, an unfathomable humiliation to her clan. Trusting it would benefit her husband, Kumarihamy declared she would do the unthinkable. With surprising courage, she began to pound the lifeless heads of her children. Some watching this catastrophe wailed, in silence, like driftwood on a deserted shore. A Chief fainted.

Henry Marshall, Surgeon of the British Forces (1808–1821), tells of the perfidious role of one Kandyan Chief who was present that day. When the king ordered the mother to pound the heads in the mortar, Kumarihamy first wavered. The Chief, who was a relative of her husband and supervised the execution, asked her to accept the king’s terms and save the family from the disgrace of living with a Rodiya clan. She did not require such encouragement. With her children slaughtered, soon to face the same fate herself, the only thing left to save was her self-serving husband and his malicious treachery for abandoning them, which she was probably not aware of at the time.

After listening to an eyewitness account, Major Forbes (1840) described the “fortitude and propriety of her conduct” by going through the “most awful scene to which any mother was ever subjected.”

Afterward, the wadakayo and slave women in the palace, carrying the remains of the children, led Kumarihamy and three women to the Bogambara Wewa, which the king could see from the palace.

Six months later, Governor Robert Brownrigg would write what happened next. The “woman herself and three more females, whose limbs being bound, and a heavy stone tied round the neck of each, they were thrown into a lake and drowned.”

King’s retributive justice regime crossed the boundaries of the 32-punishment realm under the murky and ancient Laws of Manu and Kandyan Code of Honor. Pounding heads of decapitated children in wangediya was not in those codes. For the king, it was a theater of death to warn anyone who dared to cross his path. In Discipline and Punishment: Birth of Prisons (1977, 1995), Michel Foucault wrote that such exhibitionist punishments as “the theatrical representation of pain.” But the deposed king, while aboard HMS Cornwallis, placed the blame on Kandyan laws in general, asking William Granville, “Did I make those Laws?”

Interestingly, in The Doomed King: A Requiem for Sri Wickrama Rajasingha (2017), Gananath Obeyesekere, with flimsy evidence, rules out Bogambara Wewa as the site of the drowning. He calls it a myth developed in popular stories like Purana Ehelepola Hatana, invented in the low country. He calls some informants of early writers of the Ehelepola story as “inventive mills, overloaded with falsities,” and no British account exists of Bogambara as the lake where the tragedy took place! But two decades before Purana Ehelepola Hatana, L. De Bussche wrote in Letters on Ceylon (1817) that the dead family was cast into the lower lake of Kandy. Davy was more specific. He wrote in 1821 that the women were “led to the little tank in the immediate neighborhood of Kandy called Bogambarawave [sic] and drowned.”

The alternative location Obeyesekere provides is another smaller tank north end of the city, Borawewa, near the present-day Katugastota railway tunnel. It was also closer to the Asgiriya Temple and the Royal Burial grounds, making it unlikely the king would execute prisoners and dump the bodies close to such sacred places. Obeyesekere seems to disregard Adigar himself, and Dissave of Wellassa, other Chiefs and eyewitnesses still living in Kandy who provided firsthand information to Davy and Henry Marshall.

Bogambara Wewa – The Place

Bogambara Wewa (1796–1820). Green Howards Regimental Museum, London, reproduced in Mahanuwara Yugaye Aprakata Vitti (II) by Chamikara Pilapitiya (2018).

This Wewa, also known as Palledeniya Wewa, is believed to have been built by Rajasingha II (1635–1687). Robert Knox wrote in 1681 that the king made a bank of earth across a valley, far above a cable’s length (200m) and four fathoms high. To prevent erosion, builders made a ralapanawa (revetement) along the inner slope of the bund. He had a “banquetting house about a musket-shot from his palace” [sic] on a little hill by this pond.

In the stylish praise poem Parangi Hatana (c.1642), Bogambara Wewa is likened to the Buddhist cosmic lake Anotatta. Although Kandy Lake looks dandy, the former, with a storied past and the memory of its sepulchral encounter with the Ehelepola heartbreak, was entrenched in the public pantheon of city’s aesthetics.

When measured against the Kandy maps of Lt. Col. Henry Evatt (1768–1851) of Royal Engineers in 1816 reproduced in Nihal Karunaratna’s From Governor’s Pavilion to President’s Pavilion, and in Davy’s in 1821, this bund appears to cross the narrow valley separating Bahirawakanda range between the Police Station and a projection of the Hantana range behind the Education Office near the Railway station. Furthermore, the painting Bogambara Wewa (c. 1796–1820) shown in the image clearly shows a man and a boy walking on the bund of the wewa running in the direction where, in the distance, the distinctive summit of Hantana range is visible. The artist drew it looking towards the hospital, standing on the Pushpadana College slope of Bahirawakanda, behind the police station.

In 1817, De Bussche wrote that this Wewa covered about 6 or 8 acres. Contemporary maps show it occupied the general area bordered by sections of present-day streets named Colombo, Dalada, Yatinuwara, and the Police Station, and the elevated land where the now-decommissioned Prison Complex stands, and the Bund of the Kandy Lake. Except for a few ephemeral ponds scattered along the foot of the hills in the west of the valley, this Wewa remained the main source of water for the city until the Kandy Lake came on board in 1812.

Both lakes were fed by streams originating from Dunumadalawa forest on hills bordering the south side of the city and from Udawattakele in the North. It was unlikely the palace used water from the Bogambara Wewa since it was located uphill from the Wewa. However, as Knox wrote 135 years earlier, the king had water brought to the palace in ditches cut on mountain sides in the North and East and stored in “little ponds made with lime and stone and full of fish,” probably a well and a pond near the palace. One such pond is seen east of the Kundasale road, current Malabar Street, east of Maligawa, on the Dutch Map of 1766, reproduced in Aprakata Vitti. The 1816 map signed by Henry Evatt of the Royal Engineers shows a ditch originating from Kandy Lake to the moat in front of the palace. It then curves West, and goes North parallel to Trincomalee Street. On this map, Bogambara Wewa turns to the south and tapers off as a thin strip parallel to Old Colombo Road, the present-day Peradeniya Road.

Kandy was topographically too compact, surrounded by hills and two lakes in the middle. The area occupied by the Bogambara Wewa and fields below was the only direction the city could expand. Thus, after the British occupied it in 1815, one of their first tasks was to drain it to create more land.

The ensuing building boom in the city began soon. When Davy came to Kandy in 1817, Bogambara Wewa had already been drained. So, he wrote the city “standing on the border of an artificial lake made by the last king,” unquestionably referring to Kandy Lake (Kiri Muhuda). A few years later, Governor Edward Barnes (1824–1831) rode with Rev. Reginald Heber in 1825, proudly showing off another construction project a kilometer from the Kandy Lake – the 500-foot-long tunnel through the Aniwatta hills, a shortcut to the ferry at Halloluwa on the Mahaweli River. Building of the Pavilion (Governor’s Mansion) started around 1826 during Governor Barnes’ tenure.

Last Tango of the King and Adigar

On January 10, 1815, Brownrigg declared war on the Kandyan kingdom. On February 11, eight months after the Ehelepola executions, the king fled Kandy. On the 12th, Major Willerman entered the city, followed by Governor Brownrigg on the 14th. Unlike later in 1819, when the Governor, as the new Lord of the land, returned to Kandy with Davy, on this inaugural day of entry, there was no pomp and pageantry with arches of white olas (gokkola) to receive him along the road from Gannoruwa. Immediately after, Ehelepola entered Kandy with Major Hook and joined Lieutenant Mylius and Ekneligoda pursuing the killer of his family. On February 18, they arrested the king and his family in a house near Medamahanuwara. The British escorted the king to Colombo, and 11 months later, banished him and his entourage to Vellore. He died there in 1832, aged 52.

To mollify the feared tempest of emotions in Kandyan people after deposing the king and ending Sinhala sovereignty, Governor Robert Brownrigg wrote in the official declaration to the Chiefs, reminding them of the king’s “bold contempt of every principle of justice, setting at nought all known grounds of punishment, dispensing with the necessity of accusation, and choosing for its victims helpless females uncharged with any offence, and infants incapable of crime.”

Two weeks after signing the Kandyan Convention, even before formal religious services for his family, Ehelepola informed the Governor that he planned to marry Pilima Talawe Jr.’s sister (widow of Migastenna Adigar) and asked for financial assistance for the wedding. Then, in April 1815, with wounded pride after being sidelined by the British, Adigar gave a mataka dana to 20 monks in memory of his family. His fantasy of becoming the “Deveni Rajjuruwo” did not materialize. Instead, the British gave him the feel-good title of “Friend of the British Government.” In 1818, the “friends” took him into custody. He was never charged but kept in confinement in Colombo. In 1825, he was banished to Mauritius and died in 1829.

Gananath Obeyesekere wrote that when Ehelepola was banished to Mauritius, Sinhala power was lost. Six decades after Adigar’s death, Lawrie wrote that the Ehelepola family line was extinct.

But the Adigar left it to history to judge what a cowardly and callous patriarch he was, having intentionally allowed his wife and children to perish at the hands of a roguish king’s executioners.

Sightings of Wangediya

After the bodies and implements used in the executions disappeared in the watery grave, the mood of the thickly knitted social, cultural, and superstition pathologies of Kandyans undoubtedly prevented any chance of naturalizing the wangediya, by saving it as a household item, or relic of the Ehelepola saga. It was a heartbreak and a cultural shock, painful, grisly, to give this object of murder a place within a residential confine.

But nine decades later, the first written account of the rice mortar used in the killings appears in A.C. Lawrie’s 1896 Gazetteer of the Central Province (Vol. I). He refers to the Kandy DC case number 30962, where a Malay named Sadim Kumba had stated to the Temple Land Commissioner that, in 1843, on land close to the new police station, he saw the stone trough used in the Ehelepola killings, and, in 1858, it was in the Kandy Pavilion.

This episode seems to have continued later with the alleged involvement in it of a T.B. Paranathala. In 1895, he was a Clerk in the Kandy District Court and was appointed as an English-speaking Special Juror (Gov. Gazette of 1895, Part II, p. 43). He probably had come across Kumba’s evidence, and, knowing its historical value, could have related it to Lawrie, who was a judge in Kandy at the time and working on the Gazetteer, which came out a year later.

When the construction of the police station began around 1843, workers moved a lot of earth in and out of the adjoining empty lake bed and its shoreline, and that it is possible to expect the chance of stumbling upon items buried in the former lake floor reappearing.

Sadim Kumba may have been privy to this information for two reasons. He was probably either part of the construction crew on the police station project or, as a boy growing up in the city, may have joined the crowd that followed the Ehelepola ladies on their last journey and saw the spot where wangediya was rolled down the bund.

If what Kumba saw is true, after the way the city cried seeing the executions, and as Brownrigg wrote then that Sinhalese are a “Superstitious Race,” it is incomprehensible that any sane person would take home a bloodied wangediya.

Thus, all physical evidence of the bloody Ehelepola episode, too, remained buried in the watery grave. Therefore, it was not until three decades after the wewa was drained that the British had any contact with what was buried in the lake floor, when wangediya surfaced perforce during grading work on the new police station site.

The British also feared that if remains of his family were to resurface, Ehelepola Adigar, remarried and living comfortably in retirement, but still a formidable character in Kandyan affairs with the title of Maha Nilame, though under a cloud of suspicion, would be upset, and create political instability by regrouping friends to take retribution against the chiefs who sided with the king.

With the scars of the 1818 revolt still in mind, following the 1843 discovery, the British would strategically remove the wangediya to the Pavilion, away from the public eye to prevent rekindling of sentiments among the Kandyans until after 1858, when it disappeared from the pavilion.

However, Chamika Pilapitiya, who inspected ola manuscripts and listened to oral histories in Kandyan country, had shared new insights into the wangediya saga with me. According to him it was found in an Ala Kola Landa (shrub land). A Muhandiram in a Malay soldier phalanx then took possession of it, washed, and used it at his home. His son Cader, who inherited it, sold it to a T. B. Paranathala Nilame. In 1929, it changed hands again, this time to Dr. J. W. Artigala, as stated by M. Malius de Silva.

If this story holds true, in three instances starting from 1843, three generations of Malay families – Kumba, Malay Muhandiram, and his son Cader in Kandy – were in contact with the wangediya in some form or another until early 20th Century, when it changed hands with Paranathala.

In conclusion, I implore scholars at the National Museum, Kandy Museum, and Ehelepola Museum to follow up on this lost trail. Because this wangediya is the only object now existing out here to have had contact with, and heard cries of, the eponymous family 211 years ago at Deva Sanhide, a stone’s throw from Ehelepola residence. If the museum can secure it, it is a solemn and endearing gesture to this family, now only admired as wax figures, standing in silence, unable to tell their story.

Only then can we write the last coda for the Ehelepola Requiem.

Lokubanda Tillakaratne writes about the Ethnography of Nuwarakalaviya.

by Lokubanda
Tillakaratne

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Opinion

Living dangerously as a public servant

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Reform of the Anti-Corruption Act – Part III

by A Special Correspondent
(Continued from yesterday)

The most dangerous job in Sri Lanka today is that of a public servant. Even those who have never taken a bribe or enriched themselves unlawfully, can still be accused of corruption by ‘causing a loss to the government’ and all public servants now live with the constant possibility of arrest and prosecution while holding office or even after retirement. This is a developmenthat has taken place in the past several years due to misguided policies and bad politics.

When the Central Bank was set up in 1949 under the guidance of John Exeter of the US Federal Reserve, the following provision was included in the Monetary Law Act of 1949.

“47.(1) No member of the Monetary Board or officer or servant of the Central Bank shall be liable for any damage or loss suffered by the bank unless such damage or loss was caused by his misconduct or wilful default. (2) Every member of the Monetary Board and every officer or servant of the Central Bank shall be indemnified by the bank from all losses and expenses incurred by him in or about the discharge of his duties, other than such losses and expenses as the board may deem to have been occasioned by his misconduct or wilful default.”

Until 1994, Section 47 provided all the protection that Central Bank officials needed. But after Section 70 was introduced to the Bribery Act in 1994, and ‘causing a loss to the government’ became an offence amounting to corruption, even Central Bank officers technically lost their immunity. Acts that cause a loss to the government are very much a part of the Central Bank’s functions. If the Central Bank allowed the Rupee to depreciate, the cost of servicing foreign debt goes up and causes a loss to the government. A slight increase in the interest rate increases the cost of servicing government debt and causes a loss to the government.

The only reason that officers of the Central Bank were not prosecuted under Section 70 after 1994 was because nobody got the bright idea of making a complaint against them. As pointed out earlier, Section 70 remained dormant for many years after 1994. However, the dogs were let out after 2015 and today, no public servant is safe. In the post-2015 era, petitioners have gone to courts arguing that an economic crisis was precipitated because a government reduced taxes, did not allow the Rupee to depreciate, and delayed seeking IMF assistance. Now, there is nothing to stop another set of petitioners from going to courts arguing that yet another economic crisis has been precipitated because of high taxes, a depreciating Rupee, and strict IMF conditions!

So, public servants including Central Bank officials who play a major role in economic decision making are exposed and vulnerable. The Monetary Law Act of 1949 was replaced by the Central Bank Act of 2023 and Section 47 of the old Monetary Law Act still continues to exist in a way in the Central Bank Act of 2023 in the form of Sub-section (1) of Section 121.

Jail time for public servants

However, there is a crucial difference between Section 47 of the old Monetary Law Act and Section 121 of the 2023 Central Bank Act because the new provision has been promulgated to suit the new era of criminal charges and jail time even for public servants who have not taken bribes or enriched themselves unlawfully.

While Sub-section (1) of Section 121 of the new Central Bank Act encapsulates the essence of the old Section 47, the Central Bank Act of 2023 has a new Subsection (2) of Section 121 which basically states that if an officer of the Central Bank is faced with an investigation or court proceedings, the Central Bank will meet the legal costs of that officer. This legal aid comes with the proviso that if any wrongdoing is proven, the offender will have to reimburse the money spent to the Central Bank.

It should be borne in mind that under the present law, the wrongdoing that needs to be proven under is not that the said Central Bank officer took bribes or enriched himself, but of having caused a loss to the government. So in reality, there is no protection for Central Bank officers who have no option but to cause losses to the government as a part of their day to day duties especially when it comes to exchange rate and interest rate management.

While Section 121(2) of the 2023 Central Bank Act thoughtfully provides for the legal costs of Central Bank officers under investigation or prosecution, it has not provided for the time that officer will have to spend in remand prison. For the sake of completeness, there should have been a Sub-section (3) to Section 121 stipulating that if an officer of the Central Bank under investigation or prosecution ends up in remand prison, a peon of the Central Bank will be assigned to take food and other essentials to the remand prison on a daily basis!

At least the Central Bank Act of 2023 has explicit provisions to help their employees with legal support if the need arises. But other public servants in less well-paid, less powerful branches of the public service or state institutions have no such safeguards. What is necessary is to prevent bribe-taking and unlawful enrichment by public servants but this has to be done without undermining the decision-making and problem-solving powers of public servants and thereby paralysing the entire system of governance.

As we saw in the previous article, the Indian system allows those who bear actual responsibility for running the country to decide whether a prosecution or an investigation into the conduct of an official is warranted in the circumstances if there is no evidence of bribe taking or unlawful enrichment. That enables those running the country to act on irregularities without undermining the system of governance.

However, in Sri Lanka, governments led by short-sighted and small-minded people have a tendency to come into power with their garments hitched up high, and perform various ill-advised antics to please the gallery. Hence, what works as a safeguard in India may actually be turned into an instrument of political persecution in Sri Lanka with every succeeding government mindlessly sanctioning investigations and prosecutions against holders of high office in the previous government.

In Sri Lanka, when power changes hands, the winner-takes-all and commonsense, far-sightedness and even the medium to long term self-interest of the winners themselves, go out of the window resulting in a ‘monkey with a razor blade’ situation. The Sri Lankan public service is too weak to be able to hold things steady and they too tend to get carried away by whatever political wind may happen to be blowing at a given time.

The elusive sense of balance and proportion

However, all is not lost. From the time of independence until Section 70 of the Bribery Act was introduced in 1994, public servants could be prosecuted only for actually taking bribes or possessing unexplained wealth. Even after Section 70 was introduced in 1994 to prosecute a public servant for corruption by causing a loss to the government even if there was no bribe taking or unlawful enrichment, prosecutions under this provision were not instituted for many years. So, there is a history of rational behaviour in Sri Lanka as well. What is necessary is to find some balance and a sense of proportion when it comes to public servants who take bona fide decisions that are open to interpretation as ‘causing a loss to the government’ even though that person has not taken bribes or enriched himself unlawfully in the process.

In some instances, a decision taken by a public servant may benefit some individual and it may cause a loss of revenue, loss of property or a need to make a payout on the part of the government. A given set of circumstances would require remedies within a certain range. In making such a decision, the rationale therefor and any precedents would obviously be recorded by the public servant. If a complaint is received, an internal board of inquiry should be able to ascertain whether there was anything unusual in the decision taken.

If redacted versions of such internal inquiry reports are made publicly available, anyone who is not satisfied with the conclusion should be able to challenge it with the board of inquiry, the CIABOC, the police the courts or even in the media. When an allegation relates to a loss incurred by the government and there is no evidence of bribe taking or undue enrichment, there should be some sort of a halfway house without an all-powerful external inquisitor rushing into the matter with arrests, imprisonment, investigations and prosecutions. Unless something is done to address this issue, what we are staring at, is creeping governmental paralysis over a period of time.

(Concluded)

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Opinion

Let’s salute our war heroes

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The terrorist war, which was launched in the 1970s to create a separate state, was ruthless and created political and economic instability. Sri Lankan governments, during this period, were pushed, and sometimes forced, by internal and external forces to talk ‘peace’ with the terrorist faction. The terrorists made use of the peace initiatives and strengthened their forces by procuring arms, recruiting personnel and exploding bombs in the city centres and massacring civilians

But Sri Lankan forces, who were determined to defeat the terrorist group, continued to exert pressure on the enemy with unparalleled heroism. President Mahinda Rajapaksa, too, was determined to get rid of the ferocious enemy and with the then Secretary of Defence, Gotabaya Rajapaksa, senior officers of the Army, the Navy and the Airforce, planned a full-scale operation to wipe out the enemy.

The LTTE killed many Tamil political leaders and also took with them more than 25,000 Tamil civilians, by force, as a human shield, when they retreated to the East. The civilians were finally liberated by the Sri Lankan armed forces. Many thousands of Tamil children were recruited as child soldiers, depriving them of their innocent childhood. Some were trained as suicide bombers. Many of them were killed in the battles while the remaining ones were rehabilitated by the Sri Lanka government.

When the situation changed for the better, after 18th May, 2009, one of the darkest chapters of Sri Lankan history was ended by the war heroes, assisted by the Police, and the members of the civil defence force.

Finally, around 7,000 members of the armed forces sacrificed their lives, while nearly 30.000 members were injured. The nation should be ever grateful to these war heroes who survived and liberated the land and others who were killed and also injured  fighting for the land.

RANJITH SOYSA 

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