Warning issued over proposed ‘Open Government Partnership’ action plan

The USAID had no qualms in announcing the Rs. 1.92 billion (USD $13 million) project with a Parliament that blatantly protected Treasury bond thieves. The civil society, too, remained conveniently silent over the Treasury bond scams (do not forget the Samagi Jana Balawegaya MPs, as then members of the UNP, shielded the Treasury bond thieves. They can never absolve themselves of their culpability in the bond scams. One of those MPs even had the audacity to write a book stating that there was no scam!).

By Shamindra Ferdinando

Additional Secretary to President Ranil Wickremesinghe at the Presidential Secretariat Chandima Wickramasinghe recently declared that there shouldn’t be a dispute whatsoever over the proposed third National Action Plan (NAP) expected to be implemented in line with the ‘Open Government Partnership’ (OGP) project.

She strongly advised against the government and the civil society pointing fingers at each other after having jointly worked on such a project. The official emphasized that neither the government nor the civil society should be held responsible, separately, as it was a joint venture.

The Additional Secretary issued the warning at the inaugural multi-stakeholder workshop meant to prepare the country’s third NAP for 2023-2025, held at the Renuka Hotel, Colombo, on January 10.

The latest initiative involved the Presidential Secretariat, Transparency International Sri Lanka (TISL) and Sarvodaya. The OGP project is meant to bring the government, the civil society and citizens together to primarily achieve transparency and accountability.

Declaring that the government decided to prepare the NAP on a directive issued by President Wickremesinghe, principally for the benefit of the people, Mrs. Wickramasinghe said that the report would be submitted to the Cabinet-of-Ministers for approval.

The gathering was told Cabinet approval would be sought next month. The country is in such a deepening political-economic-social crisis that agreeing on a NAP at this juncture would be a herculean task. Rapid developments taking place, both in and outside Parliament, emphasize further divisions among political parties, individual members of Parliament and civil society as the country struggles to cope with the worst-ever post-independence economic fallout.

Perhaps, the Presidential Secretariat, TISL and Sarvodaya should examine why the first and second NAPs failed before they proceeded. If they are genuinely interested in addressing the issues at hand, the need to identify the root causes for the developing crisis should be identified and properly dealt with. The PMD launched an online survey to collect public response in respect of key sectors/issues in support of their effort.

Over the years, as various interested parties, including the civil society, examined the root causes of the deterioration of the public and private sector here, there is absolutely no need for a fresh examination. Democracy rests on three pillars – executive, the legislature and judiciary. The legislature enacts laws, the executive implements them and the judiciary arbitrates when either of the other two fail in their responsibilities. Therefore, those formulating the third NAP should peruse the unprecedented Supreme Court judgment in respect of the fundamental rights petitions filed against the economic ruination caused during Gotabaya Rajapaksa’s presidency.

The Nov 14, 2023 ruling was delivered by a five-member Supreme Court bench led by Chief Justice Jayantha Jayasuriya, PC. While the Chief Justice with Justices Buwaneka Aluwihare, Vijith Malalgoda, and Murdhu Fernando agreeing collectively issued the majority verdict, Justice Priyantha Jayawardena dissented.

Political parties represented in Parliament obviously lacked the strength to address issues raised by the Supreme Court. Parliament owed an explanation regarding the continuation of the Parliamentary Select Committee (PSC) to Investigate Causes for the Financial Bankruptcy declared by the Government and to Report to Parliament and Submit its Proposals and Recommendations in this regard many weeks after the SC ruling. It would be pertinent to point out that absolutely no action has been initiated so far in respect of those who had been found faulted by the SC. The SLPP General Secretary Sagara Kariyawasam heads the PSC. On January 09, Secretary to the Treasury Mahinda Siriwardena appeared before the PSC where he was quoted, in a statement issued by Parliament on January 12, 2024, that the government never announced bankruptcy.

That statement issued by Parliament’s Director Legislative Services/Director Communication (Acting) Janakantha Silva further quoted Siriwardena as having explained that the government declaration that certain debts couldn’t be settled couldn’t be technically considered a state of bankruptcy.

Action hasn’t been taken to close the massive loopholes created by the Yahapalana government that is draining valuable foreign exchange from the country, mainly created by it doing away with the time tested exchange controls in 2017 that were in existence since 1953. With the country’s finances being in charge of the people responsible for two massive Central Bank heists can we expect anything better than their oft repeated mantra IMF, IMF, IMF….? But, most importantly, the IMF mantra is not working as was espoused by those who insisted on taking its medicine and most Sri Lankans are suffering as never before! Some of these economic hitmen even wanted to bring in economic whiz kids from places like Harvard and Yale business schools to put things right here from Yahapalana days, not seeing the obvious that those wizards can’t put right the continuing slide to economic disaster in the US, which is dragging down even countries like Sri Lanka with it, mainly because of our dependence on the fiat dollar system.

The age old saying is that the test of a pudding is in its eating, but for most Sri Lankans it is increasingly a case of there being nothing to eat.

Interestingly, the Parliament issued this statement a day after an IMF delegation arrived here on a week-long visit to examine the recent economic developments and follow-up on upcoming programme targets and commitments. Perhaps the Parliament should explain why Sri Lanka knelt down before the IMF for the 17 occasion if the situation here didn’t technically require it to be called bankrupt.

Persons in charge of the Presidential Secretariat led-effort to prepare the third NAP, should take into consideration the country had been bankrupted by the actions of the executive and those who represented the legislature as well as political appointees. They should also keep in mind that the Wickremesinghe-Rajapaksa government enacted under controversial circumstances a new Central Bank Act to restore fiscal discipline in the country after the SC ruled that the then President, two Finance Ministers and Governor of the Central Bank created the problem by their actions or non-actions.

PMD survey

Additional Secretary to the President,
Chandima Wickramasinghe addressing the
inaugural multi-stakeholder workshop at the
Renuka Hotel.

The Presidential Media Division (PMD) sought public views on five specific issues to help prepare the third NAP. The PMD based its survey on the following five sectors:

*Improvement of public services

–ways and means to improve public service machinery, promotion of innovations in the private sector for efficient delivery of public services including health, education, transport, public utilities, consumer services.

*Prevent bribery and corruption

– How to deal with systematic corruption at every level thereby encouraging accountability in the public sector as well as promotion of access to information, etc.

*Manage public resources more effectively

– Measures meant to maximize utilization of financial and physical resources of the government.

*Create safer environments for communities

– Measures that address public safety, including needs of children, women, disabled and other vulnerable communities.

*Effective management of National and Provincial projects

– Proper implementation of projects that had been funded with foreign and domestic sources, in a cost-effective manner, with transparency, timely completion and achievement of desired results.

The issues at hand/explosive combination of factors – deterioration of public services, unbridled waste, corruption, irregularities and mismanagement, squandering of public resources, perilous economic-political-social environment and pathetic state of utilization of foreign and domestic funding remain cause for serious concern.

The private sector, too, at varying levels, is embroiled in corruption. In fact, the five matters raised by the PMD can be described as deterioration of public finances to such an extent the Gotabaya Rajapaksa government had no option but to suspend debt repayment due to public sector corruption and public-private sector corruption. There cannot be a better example than the controversial sale of debt free and tax paying Lanka Marine Services Limited (LMSL), a wholly owned company of Ceylon Petroleum Corporation (CPC) to John Keells Holdings (JKH) subsequently reversed by the Supreme Court in May 2008 to explain Sri Lanka’s predicament.

A three-member bench of the SC, consisting of then Chief Justice Sarath Nanda Silva and Justices Ameratunga and Balapatabendi, agreeing in respect of a fundamental rights case filed by lawmaker Vasudeva Nanayakkara (UPFA), ruled that the Chairman of PERC (Public Enterprise Reform Commission) Dr. P. B. Jayasundera, caused the sale of LMSL in an illegal and biased manner.

The case dubbed Vasudeva Nanayakkara vs Choksy and others (John Keells case) revealed how political authorities, at the highest level, and officials, collaborated unabashedly in a corrupt deal that shook the very foundation of the government. At the time the SC gave its historic ruling in 2008 Dr. PBJ served as the Secretary to the Treasury.

The influential official continued till the end of 2014 and again returned as the Secretary to President Gotabaya Rajapaksa in late 2019. Dr. PBJ was one of those faulted by the SC in its Nov 14, 2023 ruling in respect of fundamental rights petitions filed against economic ruin.

Choksy, referred to in the SC ruling regarding LM case, had been the one-time Finance Minister (the late K.N. Choksy). Successive governments did absolutely nothing. Did anyone bother to examine the responsibility on the part of the blue chip in this regard? The 18th respondent in the LMS case Susantha Ratnayake of JKH was invited by the Gotabaya Rajapaksa government to run the BoI. That proved the government didn’t bother about the LMS ruling.

Collapse of earlier initiatives

Sri Lanka joined the OGP in 2015, the year the yahapalana government perpetrated the first Treasury bond scam in late Feb 2015. The first NAP covered the Yahapalana period (2015-2019) and the second (2019-2021). The government perpetrated the second Treasury bond scam in late March 2016.

The second NAP covered the Gotabaya Rajapaksa’s period of unprecedented chaos. In short, at the end of the period covered by the second NAP, disorder and confusion reigned.

Interestingly, the third report had been ordered by Wickremesinghe who served as the Premier during the period covered by the first NAP and then elected as the executive by the SLPP held responsible for the economic chaos that descended on the country with the Covid-19 pandemic. In fact, those in power, regardless of the political party they belonged to, blatantly acted contrary to the Constitution, thereby violating even the basic OGP principles intended to make governments more inclusive, responsive, and accountable. Had governments abided by the law of the land, Sri Lanka could have automatically fulfilled the OGP obligations and preparation of NAP would have been child’s play.

As OGP is a global effort involving governments, perhaps they should pay attention to what is going on in Parliament here. One of the key issues that emerged in the wake of Aragalaya that ousted Gotabaya Rajapaksa, who had been elected with a significant majority at the 2019 presidential poll, is how the abolition of time-tested Exchange Control (emphasis is mine) Act No 24 of 1953 contributed to the deterioration of the national economy. During the period covered by the first NAP, the Yahapalana government enacted a new Foreign Exchange Act No 12 of 2017 that favoured unscrupulous exporters and importers.

In spite of Justice Minister Dr. Wijeyadasa Rajapakse, PC, publicly declaring, both in and outside Parliament, that the 2017 Act contributed to the crisis, the Wickremesinghe-Rajapaksa government remains committed to that law. In fact, no less a person than former Governor of the Central Bank Dr. Indrajith Coomaraswamy told Parliament, in 2019, how the 2017 law diluted regulatory powers exercised by them, thereby greatly weakening financial discipline. But the Gotabaya Rajapaksa government did nothing to amend that law. Now the Rajapaksas and Wickremesinghe are together and the possibility of remedial measures seems very unlikely.

It would be interesting to see whether the third NAP would address this issue. Would PMD and its partners dare to recommend restoration of time-tested provisions in the original law to compel the Cabinet-of-Ministers to take tangible measures?

Regardless of past atrocious actions, the government can take tangible measures to reinstate public faith in the governance. The responsibility on the part of the Cabinet-of-Ministers for the crisis should be examined taking into consideration the fundamental rights application filed by the then ministers Vasudeva Nanayakkara, Wimal Weerawansa and Udaya Gammanpila against the transferring of 40% of government-owned shares of Yugadanavi power plant to US Company New Fortress Energy in Sept 2021. In early March 2022 The Supreme Court dismissed their petition as well as other petitions without taking them up for examination.

There hadn’t been a previous instance of members of the Cabinet moving the Supreme Court against their colleagues who exercised executive powers while simultaneously functioning as lawmakers. In line with the OGP principles, Sri Lanka should seriously consider bringing in far reaching but necessary constitutional amendments to bar members of Parliament exercising executive powers.

The writer doesn’t think we (parties represented in Parliament) have the political will to do so. The recent disclosure of the alleged manipulation of the Cabinet-of-Ministers by those responsible for the immunoglobulin scam and the subsequent directive issued by Maligakanda Magistrate Lochani Abeywickrema for the Criminal Investigation Department (CID) to obtain Cabinet papers and other relevant documents submitted by the Health Ministry in this regard underlined the gravity of the problem.

The success of the third NAP entirely depends on the willingness on the part of the executive, legislature and judiciary to genuinely examine the repeated failings. Those tasked with preparing the NAP should consult the National Audit Office (NAO) and, depending on the requirements, heads of parliamentary watchdog committees, regarding the failure on the part of successive governments to act on recommendations made by the NAO.

A case in point is the NAO report on Sri Lanka Cricket (SLC) pertaining to the tour of Australia for the T20 World Cup (Oct 09-Nov 13). That audit report, released in 2022, laid bare sordid operations of the SLC but the government stood firmly by those who had been faulted by the State Audit. Instead of taking immediate remedial measures, Sports Minister Roshan Ranasinghe, who sought to tackle the powerful body, was sacked. Obviously, lawmaker Ranasinghe lacked the political support enjoyed by former Health Minister Keheliya Rambukwella who received a new ministerial portfolio regardless of serious accusations regarding his direct involvement in the sordid immunoglobulin scam and its apparent attempted cover up.

Can ministers accused of acting contrary to their responsibilities be dealt differently and granted privilege status depending on their political affiliations?

Audit on 2016 USAID project, etc., needed

Initially, the writer wanted to participate in the PMD survey but later decided to raise relevant issues to compel interested parties to pay attention. The OGP project shouldn’t be just another lucrative project for the civil society as over the year’s deterioration of the public sector and related sectors paved the way for various foreign funded projects that consolidated civil society.

In late 2016, during Karu Jayasuriya’s tenure as Speaker, Sri Lanka entered into a high rofile agreement with the USAID in Nov 2016 to strengthen accountability and good governance. USAID-Sri Lanka Parliament ‘operation’ got underway over a year after the launch of the OGP project.

The USAID had no qualms in announcing the Rs. 1.92 billion (USD $13 million) project with a Parliament that blatantly protected Treasury bond thieves. The civil society, too, remained conveniently silent over the Treasury bond scams (do not forget Samagi Jana Balawegaya MPs, as then members of the UNP, shielded the Treasury bond thieves. They can never absolve themselves of their culpability in the bond scams. One of those MPs even had the audacity to write a book stating that there was no scam!).

Those who benefited from the USAID project, are on record as having said that the three-year Strengthening Democratic Governance and Accountability Project (SDGAP) was meant to improve ‘strategic planning and communication within the government and Parliament, enhance public outreach, develop more effective policy reform and implementation processes, and increase political participation of women and underrepresented groups in Parliament and at local levels.’

The Presidential Secretariat as the focal point for the OGP project should examine major efforts undertaken by previous administrations to address the issues the third NAP intended to deal with. It can ask for a report from Parliament regarding the implementation of the USD 13 mn project, just one of the many USAID projects.

In addition to the USAID projects, the European Union, too, implemented various projects but, unfortunately, regardless of such efforts to improve good governance and accountability, Sri Lanka is in chaos. Such efforts appeared to have had no impact on the executive and legislature at all. If they did, Ali Sabry Raheem, who had been a member of the House Privileges Committee at the time he was arrested and fined in March 2023 for smuggling of gold and smartphones worth nearly Rs. 80 mn couldn’t have remained a lawmaker.