Is it an attribute of sovereignty that the state is allowed to be corrupt? Is it a challenge to sovereignty to question corruption and also to make corrupt leaders, civil servants and even powerful sectors of private business responsible before law and even to punish them? Can a state apparatus that does not have a truly effective mechanism to control corruption hold its leaders, civil servants and also the private sector responsible for any form of corruption? Can a state apparatus that deliberately prevents the emergence of an effective corruption control agency be sovereign?
The use of sovereignty as a defence against every form of criticism is exposed worse for its hollowness when it comes to the issue of corruption. However, an even deeper issue is at stake here. Can a state be so sovereign as to be above the law? When these questions are considered in the context of Sri Lanka both issues become interlinked. The state being above the law and the state claiming the right not to be questioned on the issue of corruption are two inseparable parts of the same problems. What is also linked is the deliberate prevention of a state apparatus that is capable of legally holding the rulers, the civil service and the private sector responsible for any and every form of corruption.
The supremacy of the law requires that the state allocates adequate resources for upholding the law. It is not an attribute of sovereignty for any state to claim that it will not provide adequate funds to ensure that the apparatus of the maintenance of the law functions adequately. Adequate functioning means that this legal apparatus can perform all the actions necessary in order to uphold the law. If those who are in charge of this apparatus say that they are simply incapable of running the institution with the funds that have been allocated to its functioning by the state then there is a radical breach of duty on the part of the state to uphold the supremacy of the law.
This brings us to the next question. Does the sovereign state have duties? Sovereignty as it was understood in the past as absolute power had no duties. Everyone had duties towards the state but the state had no duties to anyone.
There is a whole paradigm shift when the state accepts the principle that it derives its power from the people. At this point the sovereign people confer certain duties on the state and the state is sovereign to the extent that it does not destroy the very foundation of its power, which is the people. In this form of state the power holders are persons who are bound by duties. When they do not perform their duties they violate the sovereignty of the people.
On the question of corruption the state simply does not have the power to be corrupt or to tolerate corruption. If it does so it is a fundamental violation of the sovereignty of the people. Therefore, the state claiming the right to be corrupt as it is an attribute of sovereignty or the state claiming to be above the law is a violation of the very principle of the republic and a return to absolute power.
Therefore this type of claim for the right to be above the law and the right to be corrupt are claims that no state can make. In fact, these are made by those who want to take cover behind the state in order to violate the law and engage in all sorts of activities that are destructive to the nation. To claim that to destroy the very state apparatus and the fabric of society as the privilege of the sovereign is a mockery of the very discourse on the state.
What follows is that the holders of power in Sri Lankan have threatened the very sovereignty of the state by refusing to provide adequate funds for the running of the basic institutions of law and also by the failure to develop and maintain an institution that is capable of dealing with all allegations of corruption against the rulers, the civil servants and the private sector. The existing Commission on Bribery and Corruption is purely a namesake institution without proper powers, a proper institutional structure, real independence and adequate funds to perform its job.
Underfunding means undermining
One of the greatest betrayals of sovereignty is the failure to allocate sufficient funds to run a modern system of policing in the country. All inspector generals of police for several decades have over and over again complained that inadequate funding for policing keeps the policing system inefficient and even make the policeman corrupt. On the other hand the Attorney General’s Department and the judiciary also have consistently complained about gross underfunding. There has not been adequate response to any of these claims. In fact, in terms of changing economic conditions and imperatives of fast communications in the world the Sri Lankan police, the Attorney General’s Department and the judiciary remain at a primitive level of development. The result is the denial of justice to the people. The overall consequence is the loss of the rule of law.
Nothing so clearly demonstrates the negligence of the Sri Lankan state as its failure to develop an efficient system for the elimination of corruption. In fact, quite deliberate endeavors have been taking place to prevent the development of such an institution. To keep room available for corruption and even to expand the possibilities of corruption has been one of the features of the governments since the adoption of the 1978 Constitution.
Going back to history it becomes very clear that Sri Lanka has very little experience of being a republic and a very long history of being under authoritarian rule. From at least the 6th century AD to the arrival of foreign powers Sri Lanka remained under absolute monarchs who did not develop any forms of laws for the ruling of the people. The development of the Sri Lankan monarchy during this period was mostly influenced by Brahmins who during this period acted as constructors of the monarchies in several countries such as Thailand, Burma, Cambodia and Sri Lanka. These kings had absolute power and there were no controls over the king and the small elite. This was followed by a period of colonialism where naturally there were no controls over the power of the foreign rulers. When independence was gained in 1948 it was based on the separation of powers and a liberal democratic model. This lasted only until 1978 when the constitution was changed so as to virtually undermine the separation of powers and create the idea of an all powerful executive president. After 40 years of all this now all the public institution including the institutions that are supposed to maintain rule of law and to eliminate corruption have been reduced to namesake institutions without real power to control its rulers and the powerful.
It is not possible to get away from these problems by rhetoric about sovereignty. The people must assert their sovereignty in order to develop the institutions which will enable the state to function as it should.
