18th Amendment to Constitution and Rise of ‘Posterior Liqueurs’

''We will continue to have policy debacles like the Z score fiasco, the National Savings Bank/The Finance Company deal, the Swiss puppy and the national airline, the exchange rate management fiasco, the unmanageable deficit, oil hedging fiasco, the petrol and diesel contamination fiasco, the pump and dump share market debacle, the vehicle tariff flip-flop, the sports officials London Olympic junket and the many other instances which readers know well about. This is the sad fact. The country will pay the price. ''
By Charitha Ratwatte

 The dictionary definition of a ‘pun’: ‘the clever or humorous use of a word that has more than one meaning, or words that have different meanings but sound the same’.
The second word of the headline of today’s column is not exactly a pun, but somewhat akin to one, as it is a play of a similar sounding activity which can be done with the human or animal tongue, spelt differently.

The dictionary meaning of ‘liqueur’ is ‘a strong sweet alcoholic drink, sometimes flavoured with fruit’. The first part of the headline, ‘Posterior,’ is, to quote the dictionary, ‘the part of your body which you sit on’.

There is a cruder word, pronounced and spelt differently, which describes the same identical part of the anatomy. That word is phonetically similar to an alternative word, pronounced and spelt differently, for that quadruped, the humble donkey, which is a native of the Mannar District on this island, and many other parts of the world.

Readers may wonder what took my thought process to the cruder set of words, which is somewhat similar in a pun-ish manner to ‘Posterior Liqueurs’. I have an explanation, but before that I would request the readers, who have the required language skills, to put the cruder version of ‘posterior skills’ into the Sinhala slang equivalent, to appreciate the depth of the contempt which is expressed, when it is so used.

His Master’s Voice

The cruder version of ‘Posterior Liqueurs’ came into prominence in Washington DC, USA, during the Reagan Presidency, when some senior White House officials were involved in what has come to be labelled as the Iran-Contra affair – an abortive attempt to illegally sell arms to Iran, which was under an arms embargo and channel the funds to the Nicaraguan ‘Contra’ guerrilla outfit, in violation of the Boland Amendment, which the US Congress had enacted to prohibit more funding to the Contras.

When it was exposed, the reason why no one blew the whistle on the deal earlier was explained away by saying there were too many ‘Posterior Liqueurs’ (the cruder words were used), second guessing their bosses’ thoughts, among the subordinate staff and no one was willing to stand up and speak the truth. The infection is also referred to the ‘Yes-Man’ parasite or HMV – nothing to do with HIV-AIDS, but in this context, as deadly: His Master’s Voice!
 
Tragic policymaking

Now, what triggered this thought process?

It was a column by a Special Correspondent in the Daily Financial Times of Wednesday 25 July 2012, headlined– ‘Tragic Policy Making and the ‘Wonder of Asia’: What happened and What’s in Store?’. The column ended thus: “So there is an urgent need for reforms at policymaking bodies in terms of independence and capacity. It is time for those who are concerned, interested and knowledgeable to come forward and demand that the country is in safe hands – who know how to handle the monetary and fiscal policy and the economy, who have real experience in real world financial markets, who believe in integrity and professionalism.”

Before coming to that conclusion, the column expressed the view that “policy making institutions lack quality human resources… The management positions of the monetary authority are filled only with those who enter the institution at a very young age as management trainees. The other institutions are dominated by SLAAS officers whom by definition are administrators and not specialists/economists.”

The thrust of the Special Correspondent’s argument is that the policymakers of the country are ill served by the current batch of careerists and institutionalists who occupy key positions in institutions that should be providing objective, rational and principled, advice. Instead what is in fact happening is second guessing.

There is an attempt to anticipate what the policy deciders want to hear and a competition to be the first to parrot that to gain favour. Or in the alternative, whatever inane policy initiatives are enunciated by the policy deciders are loudly cheered and hosannas sung on the wonder of the soundness of the policy and it is defended by the ‘Posterior Liquors’ in public, while in private there is much bemoaning of the wrong policies which are being implemented.

One professional adviser, at one time an outspoken official who was not afraid to express clear and coherent views, the other day confessed: “We are reduced to merely taking down dictation.” Who the dictation givers are should be obvious to the reader. When one considers the policy debacles and the flip-flops which have plagued national policy in the immediate recent past, it is obvious that the Special Correspondent has accurately diagnosed the malady.

When the Members of the Securities and Exchange Commission (SEC) recently went before the Committee on Public Enterprises (COPE) of Parliament, the question of the independence of the SEC from executive branch of Government, since the Executive President being the Minister of Finance appoints the Chairman and some of the commissioners, had been raised by Members of Parliament.

Similarly, it is reported that when a minister who is alleged to have instigated a mob attack on a court house and threatened a judge tried to attack the same judge in Parliament, the Member of Parliament presiding had advised him that, according to the standing orders of the House, “he cannot talk of the conduct of a judicial officer”

Governance

Let us examine this further. For a society to function there are four essential components: Rules, enforcers of those rules, those who adjudicate disputes arising from those rules and their implementation and those who communicate matters arising from such transactions, to society at large. The rules must have supremacy over all else. Even those who enact them should be bound by them. They should only be able to change the rules by a due process and not by whim and fancy.

Rules must necessarily have the consent of those who are governed by them. There has to be a participatory process in the formulation of these rules, with an open debate and free expression of views. Unanimity is not achievable, but the majority must endorse the rules. Minority rights must be honoured.

Enforcers of these rules must be independent from those who formulate those rules. The rule must be interpreted for the purpose of enforcement on its plain language meaning, not based on the expressed or unexpressed intentions or inner the thoughts of those who formulated the rules at the time of the enactment or debate in the legislature. Those who have to abide by the rules are guided by the enacted words, not by anything else. Therefore it is only fair that the written rule and nothing else be enforced.

The enforcement of rules naturally results in disputes, as people may not accept the interpretation given to a rule, they may attack the fairness of the enforcers or raise any number of issues to avoid culpability and responsibility. Disputes also arise between citizens in their day-to-day transactions, which require a non violent settlement process.

Therefore, the next level, the body that sorts out such disputes must have credibility.

For the adjudicator to be credible, they must be accepted as independent. They must act according to some accepted rules, procedure for inquiry, recording evidence, giving a fair hearing to the points of view of all stakeholders, punishing wrong doers according to established principles and provide for an appeal to a higher level, when one party to a dispute is aggrieved by the decision of the original adjudicator or the process followed.

Communication to the ruled of all matters connected to the foregoing process, the enactment of rules, the enforcement and the adjudication, is in today’s context of communication and information technology in a fair and objective manner, reflecting all reasonable points of view, is of vital importance. People have a right to know.

People also have to be protected from aggressive and offensive communicators. There must be rules protecting people from defamation. There must also be rules protecting the freedom of the communicators and their sources of information. The power of the state over communicators must also be controlled by rules. All this together is referred to as governance.

Readers must have by now realised, that the four powers I have described in the paragraph above, in the context of a modern liberal democratic constitutional order, are described as: The rule makers consist of the legislative assembly; the enforcers – the administrative service and the police; the adjudicators – the judiciary.

The political philosopher Baron de Montesquieu described this as the Doctrine of the Separation of Powers. Developed in ancient Greece, it later became a part of the constitution of the Roman Republic.

Checks and balances

The essence was that each branch of government should provide a check and balance on the power of the others. In the context of today’s power of the media, the communicators’ – especially social media such as Facebook, Twitter, etc. – freedom has to be protected, but their power must also be checked.

Once the legislators enact laws, they themselves must be bound by them. They shouldn’t be able to simply amend the fundamental principles of the legal regime at will. An enacted law and the resulting legal regime, is a social contract, which is a deal entered into by society through their representatives which binds them, the whole society and those who enacted the rule.

Human beings bind themselves to a social contract, when they realise the fundamental truth of impermanence. That power is ephemeral, that it does not last forever. A subsequent or even the same legislators should not be able to change that law, without following a specially mandated procedure. This is to ensure certainty of the law and the certainty of the legal regime, which governs society.

The public administration and the police, those who implement the law and enforce it must be free from political interference. Those who enact laws must be prevented from getting involved in its implementation. The public service and the Police service must be autonomous and only be subject to law. The law must rule, and not any other body, party or family. The judiciary must be free to operate a rules based system. Recording of evidence, procedure of courts of law, enforcement of judicial decisions, appeals from lower judiciary judgments, must be according to rules.

Communicators must follow legal principles. Their sources must be protected. But the public at large must be protected from predatory communicators by adequate laws of defamation and anti obscenity laws. The press, radio and TV must be free, responsible and accountable. Social media, as it is a developing field, presents new challenges, but a legal regime is vital. While the Legislative, Executive and Judicial branches are called the three estates of Government, the media is referred to as the Fourth Estate.

Professionalism

In all these sectors professionalism is fundamental. Advances in access to and standards of education and technical and vocational training have resulted in an opportunity to improve the quality of human resources in all the fields of the legislature, the Executive and the Police, Judiciary and media.

The old system, where people who were derided as OPUPALs (O’ level pass, unable to pass A/L), and got appointments through political influence, has no place today. (In my father’s time they were known as JPUPM (Junior Pass, unable to pass Metric!). All branches of government, including the Fourth Estate, the media, must be professionalised.

In the legislatures, in our country, this is sorely lacking. The low level of debate is derided by all. The Ceylon Chamber of Commerce (CCC) in its ‘Proposed Amendments to the Constitution of Sri Lanka’ dated August 2006, sent to the Secretary to the Ministry of Constitutional Affairs and National Integration, in response to a public invitation, made the point that Sri Lankan national education profile at that time was secondary or below – 35%, GCE O’ Level – 17.5%, GCE A’ Level – 7.9%, degree or equivalent professional qualification – 2.3%, and that all legislative assemblies, including Parliament should reflect this. The easiest way would be to require that all lists of nominations for elections reflect these national educational attainments.

For the public administration and Police service, professionalism means, stiff entrance examinations, selection on merit, effective training, promotion by merit, protection of tenure during good behaviour and adequate terminal benefits. However there must be space for parallel limited recruitment at all levels, where specialised expertise is needed, to promote diversity and avoid insularity, in the administrative service. The administrative service and Police must be independently managed, by an independent institution, manned by independent men and women, subject to law.

The judiciary must be autonomous. Much more resources should be provided for the training of judicial officers than is provided now. Communication and information technology must be availed of much more than today in judicial systems. This can speed up the process and also help to avoid process corruption.

The same applies for the media. Technical knowledge for human resources in the media field today is very high. Training in ethics and a code of conduct is also vital. The right of reply of an aggrieved individual or institution must be entrenched. Media personnel must be protected from abuse.

These are ways in which we can try to ensure that those who have to decide policy, are provided advice of a sufficiently high quality and the processes which implement policy decisions and those by which they are communicated are efficient, transparent, accountable and done according to law. Perfection might be unachievable but we should strive unendingly to reach the highest standard possible, or at least show some work in progress!

Financial accountability

A special word on financial accountability: The hybrid of the French presidential, Westminster Parliamentary and quasi-devolved model of government which we have is hinged on people’s control on raising revenue (taxes) and public expenditure. This control is exercised through Parliament and the provincial councils by the budget and its Public Accounts Committee (PAC) and Committee on Public Enterprises (COPE). These committees are assisted by the Department of Government Audit.

There was a tradition that both the PAC and the COPE were chaired by senior members of the opposition, however unfortunately that is no longer in practice. Further the Department of Government Audit is not autonomous and is under a line ministry and a minister.

The CCC in its constitutional proposals referred to above also proposed that a National Audit Service Commission be established as proposed in the draft 20th amendment to the constitution at that time. This would secure the independence of the Auditor General and his department. The CCC also proposed that a representative of the Institute of Chartered Accountants be included on the National Audit Commission. The CCC also suggested that the following proposals, clarifying the duties of the Auditor General, be included in the Chapter on Finance in the Constitution:

1. The primary duty of the Auditor General is to determine whether money appropriated by Parliament has been applied for the purpose for which it was appropriated. His other duties include the duty to determine whether the country is receiving value for money by examining the economy, effectiveness and efficiency of public institutions in their use of money.

2. Provision requiring a public institution to respond within a prescribed period whenever the Auditor general, in his reports to Parliament, raises a query about the expenditure of that public institution.

3. Provision requiring the Government to lay before Parliament, the terms and conditions of every loan raised by it, together with particulars relating to the repayment of the loan, the use to which the proceeds of the loan are to be put, and the ration of total debt to gross domestic product for the most recent financial year, and the impact of the new loan on that ration. Statutes authorising the Government to raise loans contain provisions with regard to these matters. However, these matters are in our view, of sufficient importance to warrant their entrenchment in the Constitution.

Absolute political power

However, readers will appreciate that all these concepts and proposals are in contravention of the principle of entrenched absolute political power, which analysts have pointed out, has been entrenched in law by the 18th Amendment to the Constitution. As long as the 18th Amendment remains law, all proposals, concepts and ideas enunciated above for an effective, autonomous and professionally managed system of governance would be a non starter.

As long as the system of governance provides for a political authority to be unlimited by any sort of check on its power, we are destined to have ‘Posterior Liqueurs’ adorning high office and political leaders being second guessed and being told only what they like to hear.

We will continue to have policy debacles like the Z score fiasco, the National Savings Bank/The Finance Company deal, the Swiss puppy and the national airline, the exchange rate management fiasco, the unmanageable deficit, oil hedging fiasco, the petrol and diesel contamination fiasco, the pump and dump share market debacle, the vehicle tariff flip-flop, the sports officials London Olympic junket and the many other instances which readers know well about. This is the sad fact. The country will pay the price.

Can any change be expected shortly? As the New Yorkers so aptly put it, ‘forgeddaboudid!’ courtesy: Financial Times
DBS