Recent elections in Sri Lanka open the way for major constitutional reform by a party and President that have already indicated their plans to remove key checks on power. Sankhitha Gunaratne, Senior Manager – Advocacy at Transparency International Sri Lanka, currently taking our Master’s in Corruption and Governance, analyses the risks of state capture.

The 5^th of August saw the Parliamentary Election held in Sri Lanka with a 70% voter turnout even amidst fears of COVID-19 transmission. Twice postponed due to the pandemic, this was a critical election that would enable President Gotabaya Rajapaksa to form a government after his victory in November last year. The elections were largely peaceful, in spite of many abuses of State resources taking place during the campaign, constituting election violations.

The President’s party, the Sri Lanka Podujana Peramuna (SLPP), secured 145 out of 225 total seats in Parliament, leaving it in a strong position to form alliances that would result in two-thirds support in Parliament. This is especially significant as it provides the necessary majority for the government to amend provisions of the Constitution. The SLPP has already indicated that it would repeal the 19th Amendment to the Constitution, which re-introduced the two-term limit for the Presidency and strengthened the Constitutional Council that recommends and approves appointments to independent commissions, the higher courts and other key posts – aspects that Mahinda Rajapaksa’s 2005-15 government had removed and weakened. The 19^th amendment also enshrined the right of access to information as a fundamental right, a key accountability tool that citizens across the country have availed themselves of in relation to varied issues ranging from access to water to accessing draft laws. Key officials have, however, indicated that the independent commissions and the right to information will not be affected – though these undertakings are yet to be proven right.

President Gotabaya Rajapaksa has now appointed his brother former President Mahinda Rajapaska as the Prime Minister, leading to the interesting dynamic of two members of the same family – not for the first time in Sri Lanka – heading the executive and legislative branches of government. The appointment does not violate any law, as former President Mahinda Rajapaksa ran and was elected for his parliamentary seat in both subsequent general elections(after being defeated for a third-term presidency in 2015). The Constitution empowers the President to appoint as Prime Minister, the person who, in the opinion of the President, is most likely to command the confidence of Parliament.

The Prime Minister also holds the portfolios of Finance, Buddhasasana, Religious & Cultural Affairs and of Urban Development, Water Supply and Housing Facilities. His son Namal Rajapaksa is the Minster of Youth & Sports, and his brother Chamal Rajapakse holds the position of Minister of Irrigation.

Markers of State Capture?

State capture is defined as “A situation where powerful individuals, institutions, companies or groups within or outside a country use corruption to shape a nation’s policies, legal environment and economy to benefit their own private interests”. The plans for Constitutional amendments combined with the neutralisation of dissenting voices bodes ill for Sri Lanka, foreshadowing a future as a captured state.

A two-thirds majority in Parliament that allows virtually unfettered Constitutional amendments to remove checks and balances, on top of the threat to the separation of powers caused by two brothers heading the executive and the legislature combined with close family members in key positions of power, makes a dangerous cocktail that raises red flags for state capture. The electoral victory also comes against a background of increasing militarisation of the State where key public positions have been filled with military personnel (see examples here, and here) and a Presidential Task Force has been appointed ‘to build a secure country, disciplined, virtuous and lawful society’ consisting entirely of military and police personnel, with a broad mandate that even allows the provision of instructions to public officials. Dissenters including lawyers, journalists, civil society and activists have come under threat, scrutiny and arrest in an alarming trend recognised by Human Rights Watch and others in its statement on 29^th July this year.

While they do not necessarily act of one accord, the Rajapaksa family and their close contacts have been implicated in many corruption scandals during their last stint in power (see here, here and here and here) giving credence to a general perception in Sri Lanka that politicians run for office with the specific intention of benefiting from public funds. However, these scandals do not seem to have discouraged voters from electing to office those implicated. It is almost an expectation among citizens that government contracts will be awarded based on what are colloquially named ‘komis’ (commissions). It is particularly concerning therefore, that the resounding mandate given by the people almost seems to endorse a level of state capture. Government procurement therefore will continue to be an at-risk area for potential grand corruption that must be subject to scrutiny especially in the context of potential state capture.

The former government that was in power in 2015-19 was originally elected on a ‘good governance’ mandate. It lost its credibility in the Central Bank Bond Scam case where the son-in-law of the then Governor of the Central Bank was alleged to have benefited from insider information about an unprecedented issue of government bonds, at a major loss to the public purse.

The track record of that government was somewhat mixed, however. In addition to promulgating the 19^th Amendment to the Constitution, some strides towards accountability were made when the then Finance Minister – also implicated in the bond scandal – was forced to step down. During the same period, special High Courts were set up to deal with corruption. The Chief of Staff of President Maithripala Sirisena was arrested and subsequently convicted for accepting a bribe of Rs. 20 million. All these factors demonstrated a certain level of accountability. Yet, that party and its successor party suffered a resounding defeat in this election.

This leads us to ask whether issues relating to corruption have ceased to swing votes in Sri Lanka, at least for the moment. As Robert Barrington points out, could it be that the ‘currency’ of corruption as an electoral issue is eroding, leading to voters making their choices on other issues, since they assume that anyone who gains power will inevitably be corrupt?

While the judiciary as the third arm of government has also been the target of political ire in the past, a robust judiciary could still act as the last bastion of hope for Sri Lanka. Anti-corruption tools such as asset declarations and the right to information must still be used and defended. Independent critical voices will be more important than ever, to call out any attempts to roll back the measures put in place to protect citizens’ freedoms and public resources – the Constitution of Sri Lanka being prime among many.