Gajalakshmi Paramasivam

04 November    2016

Breaches of Doctrine of Separation of Powers

‘President Maithripala Sirisena said today the investigations into the Central Bank issue should be free of political interference and he would forward it for an impartial and independent judicial process’ – Daily Mirror

The Weliamuna report into Sri Lankan Airlines was expected to be impartial but it proved to be highly political. One media report even declared  ‘Absolute Conflict Of Interest: Maithri’s Investigator Weliamuna Must Go’

The only way we could assess ‘impartiality’ is if we are ourselves impartial. Relative to Sri Lankan Airlines, Central Bank is more close to Government due to the core purpose of its existence. No one seems to care about the damage to the corporate mind of Sri Lankan Airlines and its staff through whom the Public feel their ownership in that Public enterprise more than directly through the government. Every person who voluntarily shared in the losses of Sri Lankan airlines – including loss of status – is an owner. An impartial reporter would have not damaged or insulted such an owner. Likewise with the Central Bank issue. The new Governor of Central Bank is already declaring that he is under tremendous pressure. All of us who invested in Sri Lankan Airlines’ status also were let down by the Weliamuna report which was highly political and turned even good business into bad politics. Investigators would come and go but who would keep the institution going with existing resources?

I wrote on 25 June 2016 – about this issue:

[Public Service turns towards Business Unit approach – as current Sri Lankan Government has also indicated – where the authority-respect system fails to bring about  One mindedness and therefore only  One public outcome is produced by the CEO. Once we change over to the Business Unit approach – the supplier must produce outcomes commonly available to all and the consumer must pay the price. This makes them Equal and Opposite. For other purposes – they are entitled to stay away from each other. 

Was Mr. Samarasiri – the Deputy Governor of the Central Bank of Sri Lanka – required by his position to provide information to the Auditor General? To my mind, even the Governor of Central Bank has no such requirement in a true democracy where the two parties are Equal and Opposite. The Governor must do his duty as per his understanding of his position duty and produce outcomes that are available in common to all users – including the Auditor General. During my exchange with the NSW Auditor General in this regard – in respect of use of Clients’  Performance Indicators by the Audit Office I wrote as follows:

‘Most progressive organizations produce both – Financial and Non-Financial Performance Indicators. They  are both for MANAGEMENT purposes and reflect the THINKING and WORK_IN_PROGRESS. If you use Performance Indicators – then you are thinking with them. This is like the Executive Government participating in the Judicial process. Your Non-Financial Reports are the Legal records that these organizations are required to maintain – such as the Recruitment and Employee Assessment records. Where there is a big gap between Law and Practice – it requires YOUR staff to do the additional work. Taking the Performance Indicators distracts you away from this work. It is in breach of the Doctrine of Separation of  Powers. These organizations must be allowed to confidentially do the cooking and it’s up to your staff to do the spy work from the finished product to the LAW and not to their dreams and goals. You are seeking the short path because your staff are not trained to find out from the client staff what is going on. Staff often ‘hide’ information from you because you are third party. So they should. That way your staff would improve their skills. Using client-staff’s work-in-progress deters your staff from thinking through their own specialty = AUDIT on the basis of existing LAW. Then we would become a uniform society instead of a diverse society challenging each other – you within the existing law and the operational staff towards tomorrow’s laws. Challenging leads to creativity – as you can see from me. Gandhi also said that the night he was thrown out of the first class compartment of the South African RAILWAYS was his most creative experience.

You need to get the client organization to publish their non-financial reports that are mandatorily maintained. Public service organizations primarily make goodwill. This can also be positive or negative – profits or losses. They are collected together and are balanced with the total costs through Common Funds. It will be useful for you to develop a standard dollar value for these legal requirements so the People can SEE and know the Truth. Your role is not to help them make a profit but to report whether they are and how much. How about doing one on UNSW? Or State Rail?’

The Bond Issue was a Business move by the current management of the Central Bank. It would be difficult for the Auditor General whose mind is structured as per the previous system of  authority-respect  arrangement to appreciate the business value of such activities. I went into Public Service from a rich Private Sector background  and hence the ability to identify with the flaw in the NSW Auditor General’s claim. Anyone who allocates blame on the basis of the old system is confirming lack of wisdom in the system of Democracy. This includes the author of the above mentioned Colombo Telegraph article (Inside Story: Arjuna Mahendran Wants Samarasiri To Oversee His Functions, Until His Return’). Once we produce independent outcomes – we are claiming Equal status and not higher or lower status. ] – austms.org

The way a professional values her/his work is different to the way a trader values her/his work. Likewise,  between the Judiciary and the Executive. Likewise, between the Governor and the Executive who make up the Minister. The Governor needs to use Truth and the Executive needs to use contributions through existing structures. Where there is no person above an official – that person is a governor. Hence areas in which we need Truth need to be separated from the ordinary ‘Business’ of an organization where economic outcomes are important.

The Bond issue therefore needs to be treated as a one-off project that was needed to ‘show’ money business which Mr. Mahendran obviously is good at – as per Singapore systems. There were many such business brains in Sri Lankan Airlines too. The head of Business part of Sri Lankan Airlines is the parallel of the Minister for Finance in the Central Bank issue. The CEO who is a combination of Professional ethics and Business is the parallel of the Prime Minister in the Central Bank issue. As we go down the line of hierarchy, the two are in one but require separation when one or the other is in need. Equality influences this natural separation. The CEO has to ensure that ownership and orderly use are equally balanced – as in parenting.

Under the old system – mother and father had/have special areas of responsibility – mother being more for internal harmony and father to earn and maintain external benefits. In Democracy there is less specialization and power is shared equally. If one is naturally good at some aspect than the other – they must divide and separate – or one must be the sole leader in that special issue. The other is entitled to express and participate through her/his Truth but not indiscriminately mix responsibilities as per her/his wish.  In the current structure of Sri Lankan political leadership – the President is more of a governor while the immediate past President was more of an Executive. This was formalized through the 19^th Amendment to the Constitution.

One needs to therefore ask the question as to whether the President has the authority to refer a matter under the Jurisdiction of the Prime Minister, to be handled through the Judicial Process? The test is whether the Finance Portfolio is shared or whether the Prime Minister is the ultimate head accountable to the Public. If shared – any declaration needs to be joint declaration by the President and the PM. Otherwise the matter ends with the Prime Minister and it is left to the Public to question and/or bring Judicial action against the Prime Minister – as I did against the then Australian Prime Minister – the Hon John Howard. If the President forwards the report – that also would  be political and would damage the investment by Sri Lankans in orderly Administration.  

Both – Governors as well as Independent Investigators are observers of  Objectively Measurable outcomes. They don’t make them. From the moment an insider starts observing the outcomes after completion – but does not partake in its pleasures s/he becomes a Governor. This is often the case with those who renounced earned  benefits. Mothers often are the first Governors in a family. That’s when they are able to work the inside system  as an invisible force – as our conscience does. The conscience consolidates. Where one is paid to investigate – one is entitled to use outcomes produced but not directly or indirectly become part of the inner workings. A mind that is dependent on the client mind loses eligibility to qualify as an Independent. Reports so produced damage the institutions being reported on. This amounts to interference.  It is the duty of the current CEO of Sri Lankan Airlines to reject any recommendation made due to the Weliamuna report and for the Governor of Central Bank to reject politically motivated reports. The COPE report must be lost consciousness of by the current Governor of Central Bank.

 All investigators who knowingly reveal wrongs of the past – must name the alternatives at least in form – to work the system that would have produced the ‘right’ outcomes. In other words – Mr. Weliamuna had the responsibility to name someone if he already knew of one or he himself ought to have taken on that position and restructured the systems to suit his recommendations. One who has access to the ‘inside’ of a system needs to first become an insider so as to earn the Independence of a Governor. One who gets paid as an outsider has to limit her/himself to the evidence available through due process to the person who commissions her/his services. An auditor is an outsider and is limited in her/his authority to access information. An auditor who is connected to the Management’s mind loses her/his independence. Hence Separation of Powers between the two.  A member of the Judiciary – who is connected to the Executive’s mind – loses her/his independence. It’s a pity that Mr. Weliamuna – a lawyer lacked this wisdom in the Doctrine of Separation of Powers. Yet – one does not observe the Bar Association being critical of this Business of Investigation.

Interestingly, the main problem with the Bond issue at public level seems to be that Mr. Mahendran’s relative had inside information in relation to the Bond’s issue and that he profited from it. Insider intelligence is quite common at leadership level in Sri Lanka also. Hence those who have at their own levels ‘shared’ their positions with family – disqualify themselves to use the ‘impartiality’ criterion. Those accountable to their conscience would limit their administrative powers accordingly. That would be self-governance going direct to the heart of Sri Lanka where Sovereignty resides.

The Weliamuna report did highlight such ‘insider’ enjoyment which would have strongly influenced the Public to dismiss the previous president – including from becoming Prime Minister.

Ultimately all of us who discipline ourselves as per our own conscience – are Sovereign. Likewise all institutions whose conscience is the core purpose for which they exist.  If one has to bear punishments to uphold this conscience/core purpose driven values – even when actions by them are lawful as they were in my case starting with  the University of NSW – one acquires the Energy to  be ‘free’ at the level of the punisher. The punishers then become the service receivers and when they refuse to accept it – they become dependents on the positions. This naturally shrinks the structures where they continue to hold leading positions. Those disciplining themselves as per their conscience – realize their  Divinity and there is no higher power than God/Truth/Love.

Sri Lankan governance structure has shrunk miserably due to dependent leaders who often reveal their weaknesses in one form or another – through Political freedom before Administrative inquiry. So long as the citizens keep fighting against such weaknesses there is still hope that we would share a rich heritage with the next generation Sri Lankans who would stand tall as Independents and would Naturally spread themselves to become global.