COPE, counter-terror and the karmic effect

Sunday, October 30, 2016

There is a whiff of ‘victory’ in the air. We are being told that this Friday’s report of the Committee on Public Enterprises (COPE) on the bond fraud of the country’s premier financial institution, the Central Bank of Sri Lanka was a singular gain for democracy.

An artful crafting of a ‘win’
Former Central Bank Governor, Arjuna Mahendran was found by the COPE to be ‘directly responsible’ in allowing a dealer linked to his son-in-law to massively profit from the Bank’s bond auction of public funds last year. As we may remind ourselves, this deal occurred once again early this year despite the public outrage that it gave rise to, the first time around. The gargantuan profits thus collected are a matter of record.

Regardless, the wilder and more obnoxious surmises were to the effect that the COPE report was a direct result of democratic changes ushered in by the Unity Government. This is, of course, far from the truth. Let us distance ourselves from this sublimely artful crafting of a ‘win’ when what is evidenced is quite the converse.

It is only in a political culture as thoroughly subverted as ours that a new Government, promising that it would reverse Rajapaksa wrongs, could so airily and so quickly embroil itself in a daylight robbery of public funds. Yet, to put it plainly, the issue was not merely the bond deals themselves but what transpired within the ranks of government in relation thereto.

Was there a political scheme in play?

In a concerted move, United National Party (UNP) stalwarts once advocating the strictest financial probity from election platforms disgracefully tied themselves up in knots attempting to justify the deal and exculpate their party’s choice as the Governor at the time. Early on, a committee of party lawyers absolved Mahendran of wrong doing. As extracts of ongoing COPE proceedings on the matter were published last year, editors were threatened with parliamentary privilege under the Prime Minister’s imprimatur.

These same developments took place with aggravated force this year as this sorry scandal dragged on. The Auditor General’s integrity in respect of negative observations on the bond scandal was challenged within government ranks and high officials of the Bank declined to present documentation before the COPE. At each and every step, obstacles were mounted.

And as the beleaguered Chair of the COPE presented his report to the House this week, what was left unsaid by him spoke more than his actual words. Clearly this was far more than the reprehensible conduct of one individual. Overridingly, the public perception was of a political scheme in play, going beyond the simplistic view that this was just a result of party loyalty towards a Government appointee.

Looking beyond the legal ramifications

At this point, the legal culpability of the former Governor is none too clear with the COPE using terms such as ‘reasonable suspicion.’ In other words, the insistence of UNP parliamentarians in including copious footnotes in the report tells an obvious tale, given that the report will now be referred to the Attorney General for legal action. Is the objective then to weaken the legal accountability of the former Governor?

At one level, if the Attorney General becomes inactive, his prosecutorial discretion may be challenged in judicial review, provided that legal arguments therein are carefully formulated. Precedent exists in this regard though even our best judges have traditionally been reluctant to intervene except in regard to the most grievous prosecutorial lapses. There is little doubt therefore that the real test lies in the courts, not in the mere fact of the tabling of a COPE report. This has been the case even in the past with equally excellent reports collecting dust in some drawer.

But to focus on the legal angle would be a mistake. The Government may well remind itself that the popular tide turned against the Rajapaksas not due to spectacular court verdicts. That same relentless logic applies here as well. The damage already done to its credibility is irreparable.

A reflection of wider questions for debate

So, exercising a modicum of honesty, let us step back from this deceptive idea that somehow, Friday’s proceedings should lead us to shout ‘hallelujah’ In that same breath, onetime UNP crusaders for good governance and now run-of-the-mill party loyalists need to be richly castigated.

Indeed, this unhappy fiasco reflects wider questions confronting us. Are Sri Lankans supposed to be thrilled and clap rapturously when politicians imperil governance and then, facing public resistance, withdraw precipitously? A recently proposed amendment to the Code of Criminal Procedure Act preventing suspects from accessing legal counsel forthwith upon arrest is a case in point. Disturbingly, a proposed draft legal and policy framework to replace the Prevention of Terrorism (PTA) Act infringes even more severely on civil liberties.

As a friend observed caustically to me recently, if this counter-terror framework had been law in 2014, the Prime Minister and the President would have been the first to be caught up under clause three, sub-clauses one and two, of attempting to ‘illegally cause a change of the Government of Sri Lanka’ through interalia, ‘endangering of the lives of the public.’

Squandering the constituency of change

If these attempts had taken place during the last decade, the uproar would have been deafening. In contrast, the cautious tip-toeing around the very same questions by Colombo’s champions of good governance is increasingly being viewed with suspicion and cynicism. Political change was brought about last year, not merely in the voting booths of the capital or in volatile and highly irresponsible social media spaces. Even taken at the highest point of impact, these convulsions would not have sufficed by themselves to change the political tide.

Rather, the real change-makers were ordinary citizens from far flung corners of the country who reacted with extraordinarily powerful anger against the racism, chauvinism and corruption of the Rajapaksa regime. This was the true courageous heart of Sri Lankan citizenry despite it being beaten down for decades by ethnic and civil warfare and monumental misrule. But due to the ridiculous antics of the Unity Government, this critical constituency of support is being eroded day by day.

This betrayal (at several levels) of that courageous public yearning towards better governance by the current political leadership is unforgivable. Absent immediate course correction, an inevitably karmic outcome awaits the despicably brazen tomfoolery that we see now.

Nothing more needs to be said, really.