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Taking ‘pay to play’ out of politics

20 Dec 2021

  • What steps should SL take to regulate campaign financing?
BY Sumudu Chamara Even though the necessity of making politicians more accountable and transparent as far as their assets and campaign finances are concerned is now a more pressing need than before, formulating laws and policies to achieve it should not be based merely on Sri Lanka’s past experiences, but on how the irregularities in that connection have evolved in the world and might evolve in the foreseeable future. These legal and policy reforms should also focus on the existing laws, because although Sri Lanka has laws to provide for the declaration of assets of Members of Parliament (MPs), only a handful of them have taken its importance seriously, and there are concerns as to whether the few that declare their assets and liabilities reveal the whole truth. These matters were extensively discussed during a panel discussion held by the Centre for Progressive Network last Thursday (16) on the theme “Big Money in Politics”. The discussion – which focused on the importance of taking measures to look into the massive amount of undeclared money that is being circulated in politics, especially during elections, and the responsibilities of the people, politicians, the legal system, the civil society, and the media in eradicating financial irregularities in politics – was attended by Justice Minister President’s Counsel (PC) M.U.M. Ali Sabry, Samagi Jana Balawegaya (SJB) MP and economist Dr. Harsha de Silva, former Committee on Public Enterprises (COPE) Chairman and incumbent Janatha Vimukthi Peramuna (JVP) Politburo Member Sunil Handunnetti, and Centre for Monitoring Election Violence (CMEV) National Co-ordinator Manjula Gajanayake. Lack of and need for transparency During the discussion, it was stressed that in Sri Lanka, there is a culture of spending money lavishly during elections, without any record of the amount, purpose, and source, and that it has become a practice condoned by many mainstream political parties without question. Handunnetti explained this situation: “It is according to political parties policies that candidates tend to freely spend money during elections. Political parties, therefore, have a huge responsibility in this regard. It is the political parties that interview and select these candidates, and in most cases, one of the very first questions that are asked from candidates during this selection process is how much money they can spend, and it is considered a qualification that decides whether they get nominations. These candidates start campaigning as individuals, not collectively as a party. In fact, what they try to do is garner votes within the party.  “If we do a proper calculation between the amount of money that is spent to promote a party’s policies and an individual candidate or a personality, we can understand this situation. The civil society has a huge responsibility to evaluate the money spent for policies and image building, while political parties, on the other hand, have a huge responsibility when selecting candidates. Parties should ignore the monetary aspect and give priority to the party’s policies when selecting candidates.” In a context where eradicating the use of undeclared money has been a political promise for ages, in a bid to make politicians more accountable, Handunnetti suggested that politicians’ promises need to be made legally binding statements. He explained: “If we are looking at what we can do in accordance with the law, I think that the Constitution needs to be amended. What we need to do is, make the manifestos of any party coming to power a legally binding document under the Fundamental Rights (FR) Chapter in order to prevent politicians from giving false promises. What we have to do is include just one provision under the FR Chapter, declaring that the promises included in the manifestos are legally binding statements, and that the failure to fulfil them may attract legal action. The citizens should be able to seek the court’s assistance if the promises they were given are not fulfilled, and get compensation as a remedy to a violation of a FR.” Doing so, according to Handunnetti, will result in proper public representatives coming to power, instead of those who can spend money. Elaborating on the magnitude of the use of undeclared money during elections, Gajanayake mentioned one incident that took place in the Matara area. “We carried out a survey focusing on spending related to the last Presidential Election and the last General Election. According to what we found out, during the Presidential Election, 35 candidates including the two main candidates had spent around Rs. 3,697 million, while during the General Election, all candidates had spent around Rs. 3,600 million. One case study we conducted in the Matara area looked into the money that was spent for a public event. The study focused on two candidates who climbed the political ladder with no political experience. It was revealed that during a period of just 30 minutes, 123 buses had come to the event, and that a sum of Rs. 15,000 had been spent for each bus. Within those 30 minutes, an amount of Rs. 2,745,000 had been spent. Such is the scale of this kind of spending.  “In fact, in the Matara District, one of those candidates spent Rs. 46.3 million. Our calculations also show that the said Matara District candidate had spent Rs. 50,000 for each vote, and we can prove this. As a whole, during the last General Election, a total of Rs. 30 billion had been spent. This is why Sri Lanka needs an expenditure ceiling when it comes to campaign finance. Money is necessary for politics. In the 1970s, during the era when the open economy was introduced, election laws also changed. Under the previous laws, from 1947 to 1977, 11 MPs had been sent home over financial irregularities. In fact, some of them were prominent politicians, and some of them were accused of the failure to mention certain expenses. However, the situation has changed for the worse.” Legal reforms  What the laws can do to curb or prevent the above-mentioned situation and what sort of laws Sri Lanka needs were also discussed during the discussion. In this regard, Ali Sabry PC explained that the existing fine for the non-declaration of assets and liabilities is not at all adequate, and that several changes need to be done including increasing this fine. “When contesting for the first time, candidates must reveal their assets, so that we can know when they collect more assets. At the same time, when starting an election campaign, there must be a maximum amount of money that can be spent. We should also suggest to the people who donate money for election campaigns to reveal their contribution, and this will make it possible to take into account other sources of funding for election campaigns. This will help us ultimately evaluate whether the amounts of funding that were received and spent tally. The candidates should show the said details pertaining to their campaign finances to the Election Commission (EC), and MPs and ministers should also reveal the same. Not doing so should be a violation of the laws. To achieve such progress, we need to take more steps. However, when revealing such information, there may be safety-related concerns, and we have to discuss that aspect of this issue as well.” When queried about the existing law, i.e. the Declaration of Assets and Liabilities Law No. 1 of 1975, which states that the failure to reveal assets and liabilities may attract a jail term and/or a fine, Ali Sabry PC said that the existing fine is inadequate and should be increased.  In response to the question as to why Sri Lanka has not seen any such convictions leading to the convicted being sentenced to jail, and why the sentence is always a fine, Ali Sabry PC said: “Sending a person to jail is not a small matter. There should be a criminal intent, or what is known as the ‘mens rea’. In the first instance, the court does not usually sentence a person for such an offence to jail. I believe that the fine should be realistic and increased. At the same time, the people should also take some responsibility when deciding who they vote for.” Speaking on how not going beyond merely imposing a fine on the MPs convicted of not revealing their assets can give the public a wrong message that it is not a serious matter, he responded: “I think that the fine should be increased to match today’s situation. Also, Sri Lanka had certain basic laws regarding campaign financing before 1978. If a person does not declare their assets, campaign finances and also sources of income before contesting at an election, that is an issue, and that should be considered a reason to challenge their contesting. That will give a message that the failure to reveal such information can even result in their losing their post.” Speaking on legal reforms and responsibilities on the part of different actors, Dr. de Silva emphasised the importance of taking measures against undeclared money in politics being a collective endeavour. He added that in order to achieve it, the contribution of several parties, namely, the EC, political parties, the media, and the civil society, is instrumental. He added: “Introducing laws is possible, but a proper foundation for the proper enforcement of those laws also needs to be provided for by the Constitution.”  Meanwhile, Handunnetti raised concerns about the existing system of declaring assets and liabilities. He explained: “The existing structure of declaring assets and liabilities is questionable, and there is a question as to whether we can accept what is declared as true. Usually, the current laws require that this declaration reveal assets a person owns by a certain date. They can simply take money out of their bank accounts before that date, and present bank account details taken after doing so. “Also, many say that their friends and supporters spend for their election campaigns and that they do not spend from their account. What others spend is not declared in this document (assets declaration). In fact, submitting asset declarations is also a form of election campaigning. It does not, however, give true details, and there are people who have assets under different names, especially in bank accounts, of which the true ownership has not been proven. At the same time, legal restrictions need to place pressure on candidates, and there is also a need for a culture of revealing assets. Activists need to take action and be proactive in this regard, and the people also need to be more aware and active. It can be as simple as asking a candidate to reveal how much he/she spent for a particular public meeting.” Future challenges The discussion also paid attention to the nature of the measures that need to be taken, and the importance of these measures being focused on social and technological advancements which are becoming more prevalent in election campaigning than conventional methods. In this regard, Dr. de Silva pointed out that various countries, including South Asian countries such as India and Bangladesh, have different laws to address undeclared money in politics.  “Some countries’ laws require the candidates to reveal the source of the funding they receive, while some laws prevent getting funding for elections from foreign donors. In some cases, there are limitations as to how many donations a candidate can accept. Sri Lanka is the only country in the region that has no laws in this connection. Any person can get any amount of money from any party for any purpose, and spend that money as they wish. The least we can do is to compare Sri Lanka with the said countries in the region. We have to start somewhere, and as a start, we can at least set a maximum amount of money political parties or candidates can spend.” Dr. de Silva also added that Sri Lanka has to change its approach in taking measures to address undeclared assets, and that instead of taking measures to prevent the recurrence of what has happened in the past, the country must prepare to face what might happen in the future. He noted: “Instead of making laws taking into account what has happened in the past, we must pay attention to making laws to face what might emerge in the future. This includes the media, especially social media. “Usually, according to what Sri Lanka has experienced, it is the candidates who spend. But sometimes, various groups spend money on election campaigns, instead of the parties or the candidates. We have to look into these groups as well. Also, we have to learn from the steps taken by advanced countries to address these issues. We have to pay attention to social media and other such platforms, because election campaigning in the future will not take place via posters, television advertising, or physical meetings. Instead, future elections will be based more on social media platforms, due to reasons such as the high production quality, the easy targeting of audiences, the unchanging cost, the convenience in getting statistics, and also the size of the massive audience it can help reach. This is a completely different situation to what we are used to, and our laws should be able to face what is coming in the future.” Ali Sabry PC, speaking on this evolving nature of challenges, said that even though it is true that the times are changing and that laws too need to change, the country should not wait for a perfect law, because no law is perfect. He noted that once laws are formulated, new challenges or developments will emerge, and that therefore, legal reforms should be an ongoing process.  “Today, we see crypto currency as a new form of transaction which has become a challenge in the discussion we are having. In a few years, there may be a new such challenge. However, having laws to ensure asset declarations is better than not having anything at all. Instead of looking at everything in a pessimistic manner, let us take some initiative and develop with time. If we wait for a perfect law, not only this, we would not be able to introduce any law,” he added. While the enactment and effective enforcement of laws to address undeclared assets may take a long time as was mentioned during the discussion, the battle against this menace does not start with the laws. While the civil society has a responsibility to question candidates, the public, or the voters, have the ability to be more judicious when electing their representatives.


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