Polling amid a pandemic while preserving rule of law

Originally appeared on The Daily FT

By Prof. Rohan Samarajiva

As I let the contending views on how and when the General Election should be held wash over me, I am comforted by the fact that most participants in the conversation cite provisions from the Constitution. Those arguing that the Constitution is silent on the specific question before us, including the Elections Commission, want the Supreme Court to give a solution. In all, good signs that constitutionalism has not been abandoned. Constitutionalism is respect for words on paper that say what power holders can and cannot do; it is basically about the widespread respect for law; it is at the core of rule of law. In an essay I wrote just before the 2010 Presidential Election and then twice in 2015, just before the Presidential Election and then in a reflection on the Election and the subsequent 19th Amendment, I described the Sri Lankan polity as being torn between the default Kandyan feudal mindset and Constitutionalism. In 2010 we went one way and in 2015 the other way. Where will we end up in 2020?

Ending the impasse
The references to Articles of the Constitution by proponents of holding elections before the country returns to normalcy is obviously a good thing. It indicates that they place weight on what the Constitution says various entities can and cannot do. One hopes that the independent Election Commission will be able to navigate the rough waters ahead. They wished to seek guidance from the Supreme Court on the unanticipated situation the country finds itself in. But only the President can seek such interpretations according to the Constitution. The President’s refusal to serve as a conduit for the Election Commission has put the Commission in a hard place. What it can now do is to seek advice and assistance from the Attorney General and several independent counsel, recognised as eminent practitioners of constitutional law. The final decision will have to be made by the Commission. But the larger context is not conducive to optimism.

Why no emergency?
Let’s take the curfew and the various orders issued in relation to it. A curfew is a serious infringement of liberty. Millions have been prevented from engaging in their livelihoods; many have been compelled to draw down their savings and even pawn their valuables; businesses have suffered enormous losses; and so on. Thousands have been arrested for curfew violations. Let me be clear. These have been necessary sacrifices. I agree with the emergency measures that were implemented on advice from experts within Government on control of epidemics and from various parties including a trade union representing Government doctors. The success of the preventive measures may be seen by the relatively low incidences of cases (though it appears that South Asia is an outlier in terms of the disease). According to a recent report in The Hindu: “According to the latest figures, the eight SAARC nations account 1.1%, approximately of the world total of 2,265,727 coronavirus cases. In terms of fatalities, the SAARC total is half a percentage point or (0.49%) or 768 of the total of 155,145 people who have died of the infection.” This must be seen in relation to the fact that these eight countries are home to 21% of the world’s population. Yet, I am discomfited by the lawlessness of the anti-COVID-19 measures. In law-governed societies, the state does not violate the liberty of the citizens outside the powers set out in some form of written law. In countries that give primacy to the rule of law, actions necessary to deal with extraordinary events such as disasters, civil unrest and epidemics are taken under legislation that set out “states of exception” or states of emergency, which is the term used in Sri Lanka. The basic idea is that a piece of legislation defining the start and end of a state of emergency is approved by the Legislature and amended periodically as necessary. All actions during the state of emergency are taken according to emergency regulations promulgated under the law. These regulations are worked up by the Executive and need not be approved by the Legislature prior to coming into effect. But their very existence in written form allows the Legislature to modify or rescind them later and, most importantly, for affected citizens to challenge actions taken beyond what is permitted by regulation. Because of the abuse of the Public Security Ordinance, No. 25 of 1947, by various governments, especially by the 1970-1977 Government headed by Sirimavo Bandaranaike, the law was amended in 1978 to require monthly approval for the extension of the state of emergency by Parliament. Even though the ruling coalition in 1994-2000 had a wafer-thin majority, it managed to use emergency powers by going through this procedure month after month.

Absence of the rule of law
If ever there were circumstances meriting the declaration of a state of emergency, it is now. But the powers set out in the Public Security Ordinance are not being invoked. Curfews are being declared, people are being arrested, livelihoods are being affected, businesses are being closed and opened all without any specific authority granted by regulations promulgated under the Public Security Ordinance. And sadly, surprisingly, no one, including those who seek to represent the people at the General Election that is in contention, seems to care. No one is making a fuss about this fundamental disregard of the Rule of Law. This is why I am pessimistic about constitutionalism in Sri Lanka. The silence and implicit concurrence of citizens and opinion leaders indicate the dominance of the Kandyan feudal mindset. The King is all-powerful and can do anything. What need do we have for written law?

The opinions expressed are the author’s own views. They may not necessarily reflect the views of the Advocata Institute or anyone affiliated with the institute.

Election in the time of pandemic: Electronic voting offers no solution

Originally appeared on The Daily FT

By Prof. Rohan Samarajiva

At a time when people are being urged to maintain social distance to prevent transmission of COVID-19 and elections have been announced, it is natural to think of electronic voting from remote locations as a solution. 

Many reasons exist for modernising the way votes are cast, including the enfranchisement of our expatriate workers and the speeding up of the counting of votes. But what is most attractive at this time is the possibility of eliminating the need for people to congregate and thereby increase the risk of disease propagation. 

Electronic voting machines versus electronic voting
Most prominently, India, which conducts the world’s largest election, has used electronic voting machines (EVMs) over multiple elections. EVMs automate a single component of the voting process. Voters would still have to come to designated locations and have their eligibility to vote and their identities established in conventional ways. 

EVMs can be designed to allow persons with disabilities to exercise their right to vote. They can reduce errors in tabulation and speed up the release of results, but they do not eliminate the need for people to congregate. They are also not a solution to the problem of allowing expatriate workers to vote.

Properly validated EVMs are all that are required for this particular solution. There is no requirement even for data connectivity. The EVM can store the votes and can transmit them when connectivity is available. The concern is about whether the EVMs have been manipulated and whether there is an audit trail in case questions are raised at a later time. 

There are solutions to the identified problems. But given the tendency of our political actors to raise questions about jilmart for no reason other than unhappiness with the outcome, it is best that EVMs be approached with caution with primacy being given to trust issues. 

Voting from remote locations
Electronic voting, also described as internet voting, is a more radical solution in that it changes many elements of the voting process. Here, the need to bring voters to specific locations during specific time periods is reduced and possibly eliminated. Within a defined time period (which can be much longer than the usual few hours), persons can cast their votes from wherever they are, including from foreign countries. 

The verification of eligibility and identity will no longer be done by the examination of identity cards, the reading aloud of names, the checking of lists by observers and so on. The voter will be in a distant location not under observation by any official. There would have to be fool-proof technological methods to verify eligibility and identity. 

There is a country that conducts elections using electronic voting: Estonia. I have met Estonian citizens who have voted in national elections while they were travelling in foreign lands. Electronic voting depends on two preconditions: the existence of advanced digital identity authentication systems and the ability to connect to the election system using the Internet. Estonia, one of the most advanced nations in terms of ICTs, satisfies both criteria. 

Over the years, the number of persons voting remotely in Estonia increased to the highest proportion: 44% in 2019. That means that even with the remote voting option available, more than half the voters chose to go a polling booth to exercise the franchise. Electronic voting will not easily displace conventional voting. It is wrong to think that electronic voting is a quick fix to the problem of conducting an election amid a global pandemic.

An incremental approach
But we do need to work on technological solutions to the problems faced by Sri Lankan citizens temporarily resident in foreign countries and by those within Sri Lanka who are living or working in locations other than where they are registered to vote. Trust is of paramount value. Therefore, it would be best to start small and gradually expand. 

The most logical starting point is voting for the workers registered with the Sri Lanka Bureau of Foreign Employment. They are legally required to be registered. 

When they register, it would be possible to issue a smart card that is capable of authenticating identity in a manner like in Estonia. 

Remote internet-based voting is the only fair and comprehensive solution for citizens living in foreign countries. Putting polling booths in Sri Lankan embassies is not a feasible solution, because the distances voters would have to travel to cast their vote would be enormous in many cases. 

For example, the embassy in Saudi Arabia is in Riyadh. It would take over eight hours of driving to get there from Jeddah, for example. And Saudi law does not mandate granting of leave to vote in foreign elections. 

Once remote voting using electronic means has been tried out successfully, the solution can be extended to those in government who now use postal voting, and then to private-sector employees who now have to take time off to vote and so on. 

If the internecine squabbling among Government entities that has so far stymied efforts to introduce identification and authentication services for citizens can be brought under control, the process can be fast-tracked so that all citizens can exercise the right to vote at times and from places of their choosing. But none of this will help with holding an election in April 2020.

What to look for in the presidential manifestos

In this weekly column on The Sunday Morning Business titled “The Coordination Problem”, the scholars and fellows associated with Advocata attempt to explore issues around economics, public policy, the institutions that govern them and their impact on our lives and society.

Originally appeared on The Morning

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By Nishtha Chadha

The 2019 presidential election campaigns are well and truly in full swing. As rallies pick up across the country, candidates have begun to announce a series of strategies to develop the country, improve living standards, and expand employment opportunities. While a range of promises have been bandied about, this week’s manifesto releases mark a critical juncture for candidates to inform citizens about where their priorities actually lie for the next four years.

Tax cuts, government subsidies, jobs, and social security have all been popular promises on each candidate’s list. The rhetoric is certainly attractive, especially as youth unemployment remains persistent at 21% and the national cost of living is on the rise, with inflation hitting 5% in September. Though there is undoubtedly a need for urgent reforms to improve the average Sri Lankan’s standard of living and access to prosperity, it is prudent to ask the question: How do these promises measure up to Sri Lanka’s current economic situation?

The economic landscape

A number of risk factors currently plague Sri Lanka’s growth trajectory. Although the economy has managed to recover relatively well from the Easter Sunday terrorist attacks, GDP growth is still expected to decelerate to 2.7% in 2019. This is well below the regional average, which is currently forecasted at 5.9% for the year.

The decline of economic growth is in line with global trends, as global GDP growth decelerates and trade and industrial production stagnates. South Asia’s performance is of particular concern, as it concedes its place as the fastest-growing region in the world to East Asia and the Pacific.

Sri Lanka’s economic landscape is reflective of this decline, as the nation’s budget deficit increased above 6% of GDP in the first half of 2019. Sri Lanka’s public debt-to-GDP ratio presently sits at 82.9%, and is expected to increase up to 83.6% in 2020 according to World Bank estimates. This is provided that the current approach to fiscal consolidation continues and no new, uncharacteristic debt is incurred. Even under this conservative estimate, forecasts suggest that Sri Lanka will be the second-most indebted country in South Asia by 2020, with its public debt-to-GDP ratio at more than 20% above the regional average.

Declining export growth and volatile investment across South Asia have further contracted revenues, leading to increased rollover risks. This slowdown in economic activity is likely to constrain job creation and income growth, as well as impede the pace of poverty reduction. Indeed, this is in stark contradiction to the promises currently being relayed by presidential hopefuls and raises serious concerns about what implications the implementation of these measures would have on Sri Lanka’s national economy. Citizens need to be wary of baseless promises that don’t have substantial, long-term priorities at their heart.

What to look for

Sri Lanka needs to consolidate its economic position if it intends to achieve the prosperity it desires, regardless of whose leadership it is under.

This begins with increasing public revenue and tightening government expenditure. Years of ad hoc policies and fragmented government investment into largely unproductive sectors, has resulted in constrained growth and irrational spending across government departments. This has led to large-scale borrowing from international funding partners, and hence, the proliferation of the nation’s current debt crisis. If candidates want to mitigate the risk factors associated with Sri Lanka’s current fiscal position, they need to get Sri Lanka’s spending under control.

Continued fiscal consolidation measures need to be supplemented with long-term expenditure frameworks, which align public expenditure with national growth priorities. Long-term fiscal planning could also serve to increase foreign investment in Sri Lanka, by bolstering investor confidence and reducing the economic impact of political volatility. State-owned enterprises (SOEs) also need to be reformed to reduce their burden on an already debt-ridden Treasury. In 2018, SOE losses amounted to Rs. 156 billion, approximately 9% of total tax revenue, and this figure only seems to be on the increase. Stronger governance and accountability measures are essential to improving SOE performance, and should be a high priority on any candidate’s policy list.

In addition to this, any intended tax reforms must be informed by evidence-based policy and evaluation methods aligned with strategic priorities and fiscal consolidation measures. While there is an obvious need to expand Sri Lanka’s tax base, tax policy amendments must also address the needs of lower income households and ensure sufficient safeguards to limit the burden on Sri Lanka’s most poor and vulnerable. Shifting from indirect to direct taxation methods could be an avenue worthy of pursuit. An active effort must also be made to pre-emptively address the impact of an ageing workforce population. Pension payments currently account for 9% of recurrent expenditure, at Rs. 194.5 billion in 2018. With growth levels already in decline, there is a critical need for the government to encourage longer careers and increase labour force participation across all sectors of society.

Sri Lankans are certainly desperate for change in this election, but this will only happen when politics moves on from being a dinner table conversation to an informed, strategic decision. Citizens need to be informed about more than just the candidates they are electing, but also the policies and priorities they stand for.

Manifestos can present a good gauge of these priorities, but can also be leveraged to hold the incoming president to account. The responsibility here lies with the public, both to vote based on an informed decision, and to demand action on the policies they base their vote upon.

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Are Sri Lanka’s agricultural policies starving our farmers?

In this weekly column on The Sunday Morning Business titled “The Coordination Problem”, the scholars and fellows associated with Advocata attempt to explore issues around economics, public policy, the institutions that govern them and their impact on our lives and society.

Originally appeared on The Morning

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By Nishtha Chadha

Farmers have always been a critical voter base in Sri Lankan politics. The 2019 election seems no different. Presidential candidates have thrown around major election promises to improve the living standards of Sri Lanka’s agricultural producers, ranging from the redistribution of state lands to wiping off farmers’ debts. Yet, a stark contradiction exists between the alleged priorities of presidential hopefuls and Sri Lanka’s agriculture policies. 

Agriculture employs 25.5% of Sri Lanka’s population, but only contributes to 7% of the nation’s GDP. While early post-independence agriculture policies focussed on food security and self-sufficiency through rice cultivation, these policies have failed to evolve with the rest of the country, resulting in low standards of living for farmers and high costs for consumers. In 1950, agriculture accounted for 46.3% of GDP and engaged around half the labour force. Clearly the principles that guided agricultural policy then, are unsuited to governing the agricultural sector of today.

A more sustainable approach to improving agriculture

While quick fixes like fertiliser subsidies and debt relief are undoubtedly appealing for struggling farmers, there is an urgent need for more sustainable and holistic policies to support workers in this sector. Farmers need to be provided with real opportunities to earn suitable wages if they are to avoid falling straight back into debilitating debt. This begins with accelerating their production capacity through schemes for diversification and modernisation. 

The Ministry of Agriculture itself has identified the following issues in Sri Lanka’s present agricultural landscape.

• Low productivity of crop and animal products for which demand is rising.

• Poor match between food commodities that are promoted under agriculture development programs and those important for food security.

• Inadequate attention to agricultural diversification in favour of crops that have better income prospects.

• Heavy post-harvest losses, especially in the perishable products.

• Failure to respond to growing concerns of food safety with appropriate
  responses through the full value chain.

• Low priority given to processed food products to cater to demand shaped by changing lifestyles.

• Inadequate attention on producing/developing nutrition-rich food products.

These issues have serious consequences not only on the profitability of Sri Lanka’s agricultural industry, but also on national food security. Malnutrition is already a pervasive issue in Sri Lanka, with the 2016 Demographic and Health Survey revealing that 20.5% of Sri Lankan children are underweight. An explicit misdirection of agriculture policy, in its concentrated focus on low-nutrition cereals rather than diversification, has certainly contributed to this manifestation. Skewed government subsidies towards traditional crops such as paddy, mean that nutrition-rich foods are often imported, and thus fall victim to protectionist taxes that make them unaffordable for many lower-income households. Evidently, Sri Lanka’s current approach of self-sufficiency for food security is not working, and both farmers and consumers are paying the price.

Wasting our export potential

Sri Lanka is uniquely endowed with a high diversity of climatic zones which allows it to grow a range of crops all year-round. This suggests massive potential for the nation to grow and diversify its agricultural exports in fruits, vegetables and floricultural products. The floriculture industry itself has developed rapidly and now earns substantial foreign exchange, while generating direct and indirect employment. In 2018, these exports were valued at US $8.5 million, with 60% travelling to Europe, while Japan, Middle East, USA and Korea make up the other key markets. Sri Lanka is already known globally for its high quality of agricultural exports such as cinnamon and tea, and should capitalise on this to promote other competitive produce. 

However, this must also be supplemented with initiatives to boost productivity and access to export markets for Sri Lankan farmers. In 2018, agricultural exports accounted for 21.7% of total national exports, and were provisionally estimated to be worth USD 2,579 million. But, agricultural productivity measures show very low labour productivity indicators for Sri Lanka when compared to its other South Asian counterparts. Agricultural labour productivity, as measured by gross value added, is also the lowest of all 3 economic sectors - for example, one hour of work in agriculture amounts to Rs. 182.19 gross value added, whereas one hour worked in industry amounts to Rs. 528.27 and one hour worked in services amounts to Rs. 613.91. 

Achieving growth without compromising food security

The Ministry of Agriculture in their Overarching Agricultural Policy 2019 (Draft) states that “Labour productivity is directly linked to farm incomes and therefore, increasing labour productivity will have positive impacts on standards of living.”. This can be achieved through mechanisation and by shifting to production of higher-value commodities. Small-scale farmers who produce most of the country’s agricultural output, though, tend to produce commodities with low economic value. These farmers face a host of barriers in accessing modern technology and plugging into agricultural value chains, which hold massive potential to accelerate production processes. Government assistance programs should therefore be streamlined to encourage the adoption of modern technology at all levels of the production process - from seeding to harvesting, post-harvest processing, value addition, food technology, storage, packaging and marketing. Current strategies of market protection, as well as direct and indirect input subsidies, have meant that governments have distorted incentives towards the production of staple food crops, which have locked subsistence farmers into poor revenues and reinforced their dependence on the state [14]. This has contributed to both a high cost of living for the average Sri Lankan, and low standards of living for small-scale agricultural producers. 

Access to export markets must also be enhanced if farmer incomes are to increase, by removing barriers to trade and increasing intra-industry connectivity. A host of regulatory, procedural, and informational barriers currently plague Sri Lanka’s agricultural sector and obstruct small farmers' ability to access foreign markets. Rigorous stakeholder consultation and long-term planning need to become staples of the regulatory landscape if Sri Lanka is to capitalise on its agricultural export potential. The National Export Strategy of Sri Lanka 2018-2022 has already identified the distinct potential for value addition in the spice and processed food and beverage industries, as a means of increasing agriculture-based export incomes. However, without the right reforms in place to support farmers’ transition into these markets, it is unlikely that this will come to fruition. 

Sri Lanka’s agriculture industry has consistently suffered from a patchwork of ad-hoc policies and fragmented priorities. This has largely been driven by the age-old rationale that self-sufficiency is the answer to food security. However, if the 2019 presidential candidates want to promise meaningful change to their agricultural voter bases, there needs to be a complete overhaul of the current regulatory landscape. Sri Lanka needs to let go of its outdated perceptions of food security and capitalise on its comparative advantage. Singapore boasts the highest food security ranking in the world, yet imports more than 90% of its produce. Global trade is a critical avenue for meeting increasing food demands, as well as changes in consumption and production patterns. Sri Lanka’s agricultural policy should thus focus on increasing cross-border flows and making it more competitive in global markets, not closing itself off from them. Political candidates are constantly touting their visions for Sri Lanka to become a ‘knowledge-based’ and ‘export-oriented economy’, so why doesn’t agriculture form part of this vision?

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Where is the money behind our politicians from?

In this weekly column on The Sunday Morning Business titled “The Coordination Problem”, the scholars and fellows associated with Advocata attempt to explore issues around economics, public policy, the institutions that govern them and their impact on our lives and society.

Originally appeared on The Morning

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By Thiloka Yapa and Aneetha Warusavitarana

Election campaigns tend to be one of the driving forces behind corrupt practices even after candidates are elected.

Therefore, with a monumentally significant presidential election just over a month away, conversations around the issue of campaign finance and corruption in public office should be gathering steam.

Running a campaign in Sri Lanka is a costly affair; an aspiring candidate needs to connect with people on a grassroots level as well as a policy level. This exercise requires a great deal of manpower, posters, social media engagement, travel, and lots of “buth packets” – none of which come cheap. As a result, adequate campaign finance is a prerequisite for a successful election bid.

The problem lies in the issue of who is providing this finance and whether there are strings attached. If money is being funnelled into an election campaign on the understanding that once the candidate is in power, the financier will be afforded special privileges and benefits, this is when citizens need to be concerned.

Of course, campaign finance is not the root of all evil in the world of corruption. Regulating campaign financing would not address blatant theft within the government, nepotism, irregular procurement procedures, and the handing out of government jobs to political supporters. However, it is a step in the right direction and, interestingly, is something that Sri Lankan law has addressed in the past.

Regulating campaign finance

The Ceylon (Parliamentary Elections) Order in Council of 1946 specifies that a candidate would have to appoint an agent known as the “election agent”. This agent is responsible for the accounting and reporting of all expenses spent on elections, along with a declaration by the candidate. These financial reports have to be submitted within 31 days of the result of the election being published in the gazette. If it is not conveyed within the stipulated time period, the candidate would not be given the chance to sit or vote as a member in the House of Representatives, until such a conveyance is made.

However, this was repealed by the Parliamentary Elections Act No. 1 of 1981. Under this law, the sources of campaign financing would have to be tracked and reported. The fact that non-compliance would prohibit an individual from taking their seat in Parliament provides a strong and effective incentive for candidates to ensure that reporting is completed in the stipulated time period. While this law did not provide caps on spending during campaigns, making these declarations open to the public would provide another avenue through which elected officials could be held accountable.

However, this accountability mechanism is no longer in place. Under the Parliamentary Elections Act No. 1 of 1981, the entire section on reporting campaign finance was repealed, thus removing this avenue of accountability.

Bringing regulations back

The Commission to Investigate Allegations of Bribery or Corruption (CIABOC) has detailed the National Action Plan 2019-2023, aimed at tackling corruption in its various forms. The section on policy suggestions for proposed legislative amendments is all the more relevant in the context of elections. While the amendments proposed to the Bribery and Corruption Act aim to strengthen the powers of CIABOC and increase their ability to tackle corruption across the board, the proposals on campaign finance and asset declarations aim to curb opportunities for corruption in public office.

The proposed legislative framework for campaign finance puts in restrictions and accountability mechanisms on the finances of candidates. This ensures that when an individual comes into office, they do not bring with them the strings and influence of external parties, and are free to prioritise the needs and requirements of their electorate.

While the suggestions do include a cap on campaign financing, the amendments which prevent conflicts of interest and introduce accountability mechanisms may be more practical to enforce.

Restrictions on donations extend to donations made by government departments, companies registered under the Companies Act in which the government owns shares, donations from foreign governments, and organisations registered outside Sri Lanka. The proposed reform also includes a section on accounting and auditing of campaign finances, making this a prerequisite for an individual to come into power and acting as an accountability mechanism.

Beyond campaign financing

Through the proposed amendments to the Declaration of Assets and Liabilities Law, the checks on financing of elected officials continue once they enter office, expanding the scope of the law to encompass the President, private staff of elected officials, provincial council members, and members of local government authorities, to mention a few. The amendments specify that officials would have to submit asset declarations at the point of their initial appointment on a yearly basis while they hold office, at the point of retirement, and for two years post-retirement.

Additionally, asset declarations of the elected official’s spouse, dependent children, and other persons who live with the elected official or have similar ties are also required.

Tackling corruption is a mammoth task, but these reforms could form the backbone of a culture where citizens hold their representatives responsible and demand increased transparency and accountability.

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