Columns

If the glittering promise of the ‘Jathika Jana Balavegaya’ (NPP) is supposed to offer a better, brighter Sri Lanka to put an end to the ’76 year old curse’ of its political rivals, it is time that NPP Presidential candidate Anura Kumara Dissanayake refrain from justifying his actions during the run-up to the September 21st Presidential elections on the basis that, ‘others are doing it, why not me?’

Resisting transparency by the NPP?

That absurd justification is increasingly being used by the NPP to the extent that this (logically) defeats its own argument of being ‘different’ to the others. Earlier, the NPP Presidential candidate announced on a recent visit overseas to meet his ‘supporters’ that he will declare the cost of his (frequent) travels and the sources of that (private) funding only if President Ranil Wickremesinghe together with his Minister of Sports and Minister of Labour/Foreign Employment discloses the same information regarding their (state) travels.

Admittedly, the NPP candidate did not travel on state funds. As such, the duty that arises is different to presidential or ministerial travel. That being said, transparency regarding the sources of that funding establishes financial accountability in the functioning of the NPP. That also conveys the powerful message that easy words in opposition will translate to action if political power shifts. It is hardly reassuring therefore that non-disclosure is shrugged away by referencing the conduct of ruling politicians who have to be coerced to release those details much like extracting water from stone.

In other words, that same dangerous intransigence to party transparency seems to apply to the NPP while in the opposition. No doubt, the Regulation of Elections Expenditure Act aims to limit the spending by political parties, impose a duty to declare donations given to political parties and independent candidates and ban contributions by state bodies, foreign governments et al. Even so, those restrictions will come into force by gazette issued by the Elections Commission after five days have passed following the conclusion of the nominations period.

Bane of politicization of the public sector

But Sri Lanka has been in election mode for months. Is it not incumbent upon political parties, not only the NPP but also the ‘Samagi Jana Balavegaya’ led by its Presidential candidate Sajith Premadasa (as the two parties which hold themselves out as the ‘new guard’ as opposed to the ‘old), to show good faith in the sources of funding for numerous activities (including the much publicized programme of unveiling ‘smart’ classrooms in schools) that amount to a forerunner to the official election campaign?

And then we have Mr Dissanayake’s explanation that no election laws had been violated by his attending the National Convention of Nurses in Maharagama. That was argued to be a trade union meeting organized by the ‘Janatha Vimukthi Peramuna’ (JVP or the NPP’s political avatar as the case may be) which the NPP presidential candidate attended as a ‘guest’ (in actual fact, the ‘chief guest.’)

He pointed out that official leave had been granted to the nurses to attend the trade union meeting as legally required. On its part, a besieged Elections Commission has opined that the controversial event falls under the aegis of the Establishments Code, not election laws and has called for an explanation from the Director General of Health Services.  That aside, if the NPP believed that the visual sight of rank upon rank of nurses in sparkling white official uniforms pledging their allegiance to the party, helped its cause, it was sorely mistaken.

Deeds, not words required

That only conjured up ugly reminders of the bane of politicization of the public sector which has crucified Sri Lanka for much of its post-independence history. And here again, the NPP’s Presidential candidate directed his annoyance at polls monitors questioning this spectacle by asking as to why fingers were not being pointed at political events held at schools or President Wickremesinghe’s whole host of state-sponsored welfare and development programmes which continue even after his entering the election fray as an ‘independent’ candidate.

But that is not the point. NPP aligned academics, scientists, lawyers and sundry others must take care not to fall into the ‘Viyathmaga’ trap that reduced scores of professionals, public servants and professors to bedraggled jokers and dragged former President Gotabhaya Rajapaksa and with it, Sri Lanka, to ruin. For if the NPP wishes to ‘set itself apart’ from others which they excoriate as being part of the ‘old’ corrupt and venal political establishment, it must do so by deeds not words.

Merely holding out that their candidate will usher in a ‘new era’ in governance in this land will not suffice. In truth, all that glitters in NPP-land is certainly not gold.  Meanwhile the Supreme Court has stepped into the breach following provincial governors defying requests by the Election Commission not to appoint local government ‘advisors’ from former local government representatives and candidates who had submitted nominations for postponed local government elections.

Legal to refuse ‘illegal’ orders

These appointments have been halted through an ‘interim order’ issued by the Court in a fundamental rights challenge brought by election monitors. However, President Ranil Wickremesinghe’s use of the Presidential Secretariat and his media unit for campaign purposes continues unabated with the Commission taking the view that it cannot intervene officially till the President is granted nomination as an ‘independent candidate.’ Moreover, the Commission’s communication to the President’s Secretary to stop state-sponsored development and welfare programmes that ‘promote’ political parties and candidates has been curtly rejected.

The Secretary has taken the stand that ‘development and welfare programmes’ do not constitute ‘illegal activities’; therefore he cannot instruct public officials to halt such programmes. There is, of course, a manifest irony arising from this self-serving refusal to ‘interpret’ such programmes as ‘illegal.’ That apart, the question is whether (or not) the President is conferred an unfair advantage in the election fray thereto? In this instance, too, will the Court be called upon to intervene?

Indeed, the Supreme Court has consistently upheld the principle that a government servant is empowered to refuse to obey an ‘illegal’ order by his or her superior resulting in the use of state assets for a particular political party or candidate. In several established precedents, the Court has warned that, public officers cannot be used for political propaganda or other work of the government as they are officers engaged in rendering services to the public, for which they were paid out of public funds. As such, they could not be commandeered to work for one political party alone.

Classic violation of the equality principle

In other words, ‘…the use of resources of the State, including human resources, for the benefit of one political party or group, constitutes unequal treatment and political discrimination because thereby an advantage is conferred on one political party or group which is denied to its rivals’ (see Deshapriya v. Rukmani, Divisional Secretary Dodangoda and Others, (1999), also Hettiarachchi v. Mahaweli Authority of Sri Lanka and Others, (2000).

Political campaigning by the President’s team is carried out through a host of state activities such as ‘Jayagamu Sri Lanka’ (Ministry of Labour and Foreign Employment), ‘Urumaya’ (Ministry of Lands and Tourism), ‘Daham Pasal’(Ministry of Buddha Sasana) and ‘Randora ‘ (Urban Development Authority). All these programmes afford a platform for the President, his Ministers and their respective teams to effectively ‘promote’ the candidate of their choice (viz; the incumbent). It will be interesting to see if any public officer tasked with any duties under any of these programmes refuses to carry out his functions.

That will indicate the true growth of Sri Lanka’s election laws to a measure of maturity.