Timescale confusions in solutions for the crisis

Originally appeared on the Daily FT

By Prof. Rohan Samarajiva

A few days after the tsunami, I was called to an expert meeting at Temple Trees by the then Prime Minister, Mahinda Rajapaksa. I was seated next to Arisen Ahubudu, the famous giver of names. He stated that we had lost too much territory, including Madagascar, and that we could not afford to lose more. He proposed building a wall around the country, using the traditional techniques used in protecting tank bunds, the ralepanawa. I was stunned that such a nice and well-meaning person could come out with such arrant nonsense. He had confused geological time with human time. 

Timescale confusions of a smaller magnitude are evident among many proposing solutions to our current multi-faceted crisis. 

Solutions to power cuts

We all experience the problem. Some of us understand the cause: no dollars to pay for fuel for the generators that make up for the shortfall from lower production from the hydro generators and Norochcholai. Even if we had the dollars, such fuel is priced in dollars and subject to price fluctuations that we cannot control. It is common sense that we should shift to electricity produced by renewable sources such as solar and wind. 

The problem is that under current market and technology conditions, both the distribution network (low voltage) and the transmission network (high voltage) are limited in how much solar- and wind-generated electricity they can accept. We can, and should, increase the use of electricity from renewable sources, but we need to upgrade the transmission network to be able to do so. Solar panels yield electricity when the sun is out (not at night and not when clouds pass over the panels); the wind will produce electricity even in evenings when our use is highest, but it is still intermittent. Batteries are not cost-effective yet.

Given the need to balance supply and demand of electricity in real-time caused by lack of cost-effective storage technologies, we need a large and modernised system in order to absorb more energy from these intermittent sources. We need to invest in upgrading the national grid and possibly connect to the large Indian grid. Feasibility studies must be done, and investment mobilised. It will take several years for the desired outcomes to be achieved. Increasing solar- and wind-based energy is not a viable solution for our immediate problems, though it is a solution in the long term. Within the applicable timescale, what we need are dollars for coal and diesel.

Promotion of manufacturing

Twin deficits, exacerbated by recent economic mismanagement, caused the crisis. More exports would have addressed the current-account deficit and may have helped with the fiscal deficit if the right tax policy was in place. Roughly $ 11 billion was earned from the export of goods such as apparel, tea, and value-added rubber products before the pandemic. Around $ 7 billion was claimed from service exports such as tourism, software and business process outsourcing. 

It is true that the East Asian Tigers and China took their people out of poverty through the production of goods for export. One has to ask why Sri Lanka (and to a significant extent, the rest of South Asia) failed to ramp up the production of goods for export, relying more heavily on service exports. One could even argue that the apparel industry is a service industry. A tailor who makes a suit out of material given to him is undoubtably a provider of services. The Sri Lankan apparel industry, which is the largest importer as well as the largest exporter, is doing what a tailor does, at scale. If it is manufacturing, it is manufacturing lite.

Until the market opening in 1978, the answer to the question of why we had no industries was that our private sector was weak and lacked capital. Therefore, the State went into manufacturing: steel, plywood, tyres, sugar, paper, shoes, cooking implements, etc. were all produced by fully State-owned enterprises under protection. They produced shoddy goods at high prices for the local market and lost enormous amounts of money. The plywood factory resulted in the clear-cutting of half of Sinharaja. After the market was opened to imports, they went out of business.

Since 1978, we have relied on private investors, with or without foreign partners, to manufacture for export (and for domestic use). They have tended to invest in sectors that did not rely too heavily on cheap energy (because our electricity prices were high, especially for industrial users). Except in the case of a few sectors such as apparel and rubber-based products, our producers failed to secure access to markets. Restrictive laws and para tariffs hindered local producers from getting integrated into global production networks, with very few exceptions. 

So, the industrialisation prescription as a solution to the crisis will take time and effort to implement. We would have to ensure reliable and low-cost energy (and other infrastructure services such as waste disposal), eliminate para-tariffs, and create the conditions for market access. The latter is the most challenging. 

Investors such as Michelin ensured market access for the solid tyres produced in Sri Lanka. The apparel industry also benefited in the early stages from foreign investors who facilitated market access. Attracting such investors and entering into trade agreements are needed for market access. But both take time. 

Industrialisation may be a good solution, but it is not for the Government to decide on manufacturing priorities. Because China has established itself as the factory to the world, countries such as ours must identify and exploit niches. Those best positioned for this are those with intimate knowledge of the markets, with skin in the game, namely private investors. The State must create the conditions and leave the actual investment decisions to such players. All this will occur on a timescale different from what is relevant to emerging from the present crisis.

Constitutional reforms

It has become evident that the hyper-presidential system created by the 1978 Constitution has failed to yield the promised benefits and has caused serious damage after the enactment of the 20th Amendment, which removed all the checks that were placed on the President by the 19th Amendment. For example, the Minister of Finance has stated that specific officials were responsible for the tax cuts that triggered the present crisis and the delay in debt restructuring. In the current system, the sole authority for those appointments was the President who must therefore be held accountable for the current crisis.

To address the demands of the protestors, the President must go. He must resign or be impeached. The former can take place immediately would allow the country to return to normal (if such a condition exists after the devastation wreaked by the President and his appointees). The time taken to impeach will be too long. 

The next best solution is to reduce the powers of the President. This would require a Constitutional amendment. An amendment that is approved by Cabinet can be completed within around six weeks. If it is moved as a private member’s motion, it could take more than six months, outside the timeframe needed to calm the country and get the debt restructuring done. The announcement that the Government is proposing the restoration of the 19th Amendment suggests a solution within the required timescale. Of course, it would be necessary to scrutinise the proposed amendment and ensure the President’s powers are meaningfully reduced immediately.

In innumerable discussions I have participated in, I hear proposals for Constitutional reform that pay no heed to the time factor. Some talk of a Constitution authored by the people, modelled on what is going on in Chile. The process began with an amendment to the Constitution and a referendum in 2020. This was followed by an election for a Constituent Assembly in April 2021. Its deliberations are ongoing. How realistic is this kind of process for the kinds of issues that have brought our people to the streets?

In these days of limited attention (and paper supplies), it would be useful if greater weight is given to the appropriateness of the proposed solutions for the time needed to solve the problems that beset us.

Rohan Samarajiva is founding Chair of LIRNEasia, an ICT policy and regulation think tank active across emerging Asia and the Pacific. He was CEO from 2004 to 2012. He is also an advisor to the Advocata Institute.

How can affordable electricity be assured 24x7?

Originally appeared on the Daily FT

By Prof. Rohan Samarajiva

The best way to understand the value of something is to experience life without it. These days, the Government is giving us a crash course on the value of reliable electricity supply. An unpleasant lesson, but nonetheless a learning opportunity.

If we probe the causes of load shedding, the learning can be deeper. Load shedding can be eliminated but at a cost. When hydropower declines due to periodic drought, the difference can be made up with generators running on imported fuel, the dollar price of which is determined by world market conditions. We can have 24x7 electricity, but not at an affordable price.

The Government created the immediate conditions for unreliable electricity supply through mismanagement of the country’s external debt. Today’s problems are not caused by delays in building additional generating capacity; they are caused by the lack of dollars to provide fuel for the existing generating plants. But there were deeper weaknesses in the organically developed system that must be understood.

With benchmark crude oil prices going over $ 100 per barrel, we must rethink our dependence on imported fossil fuels.

Reducing dependence on fossil fuels

Examination of the composition of our imports (Figure 1) shows that refined petroleum and crude oil taken together is the largest or second largest category of what is imported. It follows then that reducing the import of petroleum products would be an action that would satisfy many: those concerned about global warming will be made happy; those who want self-sufficiency would also be pleased. 

Petroleum imports are not used solely for electricity generation. But the way to reduce the consumption of petroleum products for transportation also involves electricity generated by renewables: buses and trains that are powered by electricity; lorries, cars, three-wheelers, and two-wheelers that are powered by electricity. Promoting electric vehicles makes no sense unless electricity comes from renewable sources. 

The significant increase in expenditure for fossil fuels starting in 2011 (Figure 2) appears correlated with the massive increase in the vehicle stock after the end of the conflict, leading to a doubling by 2014. Luckily, the biggest increase was in two wheelers, which do not take up a lot of road space and consume less fuel. 

Generating electricity from renewables does require some imported elements such as low-cost, efficient turbines and photo-voltaic panels but the costs and dependence is nowhere near that which exists with imported oil and natural gas. In fact, it may be possible even to export electricity at certain times of the day or even for months on end. But this will require substantial investment in the transmission grid.

Preconditions for increasing use of renewables

An economics commentator whose work I follow had expressed puzzlement at “demand for electricity is higher than supply” being given as a reason for load shedding. Others had expressed outrage at some Facebook posts that I had shared, which stated that solar and wind could not provide a complete solution to our energy woes. These responses by well-meaning and intelligent commentators made me realise the need for a better understanding of how the electricity is generated, transmitted, and distributed.

For all practical purposes using currently affordable technology, electricity must be treated as something that cannot be stored (but see discussion of pumped storage below). That means that it must be generated at the same time as people consume electricity by activating lights or appliances. Peak consumption in Sri Lanka (in the evening hours starting from around 6:30 p.m.) is around 2 or 2.5 times that of lowest use which is around 1000 MW. 

That necessitates a cheap source of baseload electricity that can be drawn upon throughout the day. In addition, we must have other sources that can be mobilised as demand increases. One would think that the major hydroelectric plants that have been built on the main rivers which generate cheap electricity that is unaffected by world market prices and the value of the rupee could serve as the source of baseload power. But there are constraints, such as competing demands from agriculture. The weather affects hydropower, as we are experiencing now. 

Therefore, planners in the past argued for coal as the ideal baseload for Sri Lanka. If Norochcholai does not keep breaking down and operates optimally, it can give 900 MW continuously whether or not the rains come. But it does break down, and it appears there have been irregularities in coal purchases. Coal, even if procured on long-term contracts at the lowest possible price, still must be paid for in dollars.

There are those who argue that Sri Lanka has plenty of wind and sun, and we can solve all problems by shifting to wind and sun. But the simple fact is that these are intermittent sources. Solar does not produce electricity when the sun does not shine and produces less when clouds cover the sun. Wind can produce throughout the day and night, but there are times when the wind dies down. It requires complex system controls to blend these intermittent sources into a centralised system designed for large, stable and controllable generators. 

Countries have incorporated massive amounts of intermittent renewable sources. In 2019, 47% of Denmark’s electricity came from wind. But they have a very sophisticated grid that is capable of handling intermittent power sources, and they use interconnections with other national systems to help balance the system. So, for example, when excess power is generated by the Danish wind turbines, it is used to pump water back up into reservoirs in Norway and Sweden (a method of storing electricity in the form of water known as pumped storage), which can then be run through turbines again to produce more electricity when needed. Yet with all that, Danish consumers pay more for electricity than their neighbours.

Similarly, if Sri Lanka is to increase the use of intermittent power sources, we will have to upgrade the grid and the system control centre’s software. Given the difficulties of synchronising the frequencies to one big plant such as Victoria, it may even be necessary to gradually convert the grid to direct current. If the Sri Lankan grid is connected via a high voltage direct current cable to the Southern Indian grid, the much larger combined system can absorb a greater amount of wind and solar power. 

Interconnecting does not mean that a country gives up on generating its own electricity. It simply means that marginal amounts of electricity will flow in either direction when it is advantageous to two (or more) systems. The fact that the peaks are different in the two systems can also be used to reduce the high costs incurred at peak.

It may be necessary to directly link revenues derived from regulated prices to those who make the substantial investments needed for the grid. This will almost necessarily require a restructuring of the current ungainly, unresponsive, and money-losing CEB in a manner that allows the transmission unit to be run efficiently. 

All these options require careful study in terms of costs, benefits and energy security. The relations between Denmark and its neighbours are such that all the parties can be confident about the contracts being respected and any disputes that arise being settled in a fair manner. We must ensure that the interconnection agreements with India have all these safeguards. The precedent of India’s interconnections with Bhutan shows that mutual interdependence is achievable in South Asia. The experience in Europe where interconnection, including over long distances across water, is growing rapidly even after Brexit, will have to be studied. 

Rohan Samarajiva is founding Chair of LIRNEasia, an ICT policy and regulation think tank active across emerging Asia and the Pacific. He was CEO from 2004 to 2012. He is also an advisor to the Advocata Institute.

Air India sold; privatise SriLankan now

Originally appeared on the Daily FT

By Prof. Rohan Samarajiva

Privatisation should not take into account the nationality of the purchaser, but that a foreign acquisition would, on balance, yield a more sustainable solution

Air India, which was losing $ 3 million a day on average (over $ 1 billion per year) has been sold for what amounts to loose change for a conglomerate the size of Tata Sons: $ 400 million plus the assumption of $ 2 billion out of the massive debts in excess of $ 8 billion accumulated by the state-owned carrier over the years.

But this is a good deal for the people of India. It is one that we in Sri Lanka should study and emulate.

Air India, founded by the Tatas in 1932, was expropriated by the state a few years after independence. It, and Indian Airlines which was merged with it a few years back, had the backing of the state, unlimited financing, and monopoly rights in both the domestic and international segments. Yet, service was awful, and profits were rare. 

As the market was opened to competition, first in the domestic segment and then in the international, the two state-owned airlines failed to meet the challenge. Even today, Air India is smaller than IndiGo, an airline which commenced operations in 2005.

The greatest benefit to the public is the avoidance of subsidising the airline. The government will still have to deal with the remaining debts of the company but at least the liabilities will not keep growing. And if the Tatas manage to turn it around, the government will receive tax revenues.

100% sale

It took the Modi government four years to get to this point in the sale. But in fact, various Indian governments have been trying to do something about this bleeding sore for much longer. Earlier attempts failed because the government was trying to keep an ownership stake and the ability to interfere in management. 

In 1998, the Kumaratunge government sold only 40% of the money-losing and inefficient Air Lanka for $ 70 million. It bundled the sale with a 10-year management contract to Emirates. But given the crudity of how the letter and spirit of the management contract was violated by the government in a fit of pique, it was unlikely that any new investor/manager would trust the government of Sri Lanka to keep its word.

Back in the 1990s or even in the following decade, state-owned airlines were seen as having value. But over time, the environment has changed, and they are beginning to look less like marquee investments and more like collections of landing slots and aircraft. With the present transaction, more attention is being paid to Air India’s Heathrow landing slots than the value of its brand or the prestige of being a flag carrier. The airline business is a regulated activity vulnerable to state interference and coercion. Even having 100% ownership is not going to protect an airline with the major presence in a national market from the caprice of a head of state annoyed that his entourage did not all get seats in business class. But it is better than having thieves foisted on the airline as managers. The thievery engaged in by SriLankan management is now in the public record, thanks to the Airbus investigation. 

For how much?

Even when Emirates was remitting dividends to Treasury, the airline itself was not profitable (though it was not haemorrhaging money like after Emirates departed); the real money makers were catering and ground handling, which were monopolies. The considerable pressures that will be exerted to bundle these activities along with the airline to show a less cringeworthy sale price should be resisted. 

Once we get rid of the money-guzzling airline, action should be taken to provide the best possible services to all airlines without discrimination through optimal use of the tools of competition: competition for the market and competition in the market.

The Government can save face by manipulating the debt component of the sale, as has been demonstrated in India. Because the government of India is absorbing more of the debt than the stated sale price of $ 2.4 billion or the actual cash component of $ 400 million, an uncharitable observer could even claim that the Modi government is giving away an airline for nothing. But that disregards how much is saved by not having the white elephant in government hands: more than $ 1 billion a year.

With SriLankan, the avoided losses to Treasury would be Rs. 99 million a day, the average per day loss incurred by the airline in 2018, 2019 and 2020. The less abnormal years of 2018 and 2019 were included lest it be said that no general claims could be made from losses in a pandemic year. Rs. 99 million ($ 0.5 million a day) is quite a bit lower than Air India’s $ 3 million a day benchmark. But it must be remembered that most things in India are around 50 times the size of Sri Lanka, whereas the daily loss is only six times. 

But still, not losing Rs. 36 billion per year ($ 180 million) a year would be nice. That’s close to one fourth of what the Government spent on pensions in 2020. In times like this, every billion matters.

But it should be Sri Lankan

Once I was on a TV talk show with JVP leader, making headway with the argument that the taxes paid on potatoes and milk powder by a housewife in Siyambalanduwa should not be spent on subsidising SriLankan Airlines. He conceded that such subsidies were wrong and that the government appeared incapable of running an airline. But he said, why do we have to sell it to foreigners? Why cannot some good Sri Lankan capitalists take it over and run it professionally? 

So shocked was I by this ceding of ground that I was unable to properly respond, which I will do now. My first response would have been to say that from a Marxian perspective the nationality of the capitalist makes no difference. Exploitation is no less objectionable because the capitalist carries the same passport as the exploited. But then, perhaps Marxism is no longer relevant, this being three decades after the fall of the Berlin Wall and all that. 

As a consumer why would I care about anything other than the price-quality bundle offered by the airlines offering service to the destinations I wished to travel to? If one of the airlines happened to be a lossmaker like Air India or SriLankan, subsidised by other people’s tax dollars, that would be even better for me as a consumer. 

But then, it could be argued that this was a form of predatory pricing, whereby even efficient airlines were driven to rack and ruin because they have to match the artificially low prices of the state-subsidised carriers. As a consumer I would not care, but perhaps as a policy maker I may. The remedy for this would be some form of inter-state agreement not to offer subsidies, as there exists in the European Union.

But this would be a digression, because the whole point of privatising to a foreign or domestic investor would be to get away from subsidising the flying rich. If the investor believed he would not be bailed out, he would run the business in a responsible manner, offering reasonable prices and withdrawing from ruinous competition where such popped up. The only danger would be the state (or the Cardinal through the state) exerting pressure not to withdraw from unprofitable routes, something SriLankan is very familiar with.

Who would be able to better resist such pressures, a domestic or a foreign investor? The answer being the latter, I would conclude that privatisation should not take into account the nationality of the purchaser, but that a foreign acquisition would, on balance, yield a more sustainable solution.

Rohan Samarajiva is founding Chair of LIRNEasia, an ICT policy and regulation think tank active across emerging Asia and the Pacific. He was CEO from 2004 to 2012. He is also an advisor to the Advocata Institute.

Sri Lanka state fails in the core business: administration of justice

Originally appeared on the Economy Next

By Prof. Rohan Samarajiva

In a previous column I stated that “no political or economic theorist would argue that the state should not be engaged in the provision of law and order. . . even extreme libertarians would see a role for the state in law and order.”

Sri Lanka presents a façade of a functioning legal system. Justices and judges get appointed; ceremonial sittings are held. Funds from World Bank loans are expended; buildings are constructed. Lawyers walk around briskly in court premises; many of them live well.

But it is rare to see a modern state fail so badly in this core function.

Evidence of failure

The President’s Counsel currently serving as Minister of Justice presented the evidence in a speech to the 47th Annual Convocation of the Bar Association of Sri Lanka:

– the average time to enforce a contract in Sri Lanka is 1,318 days

– We have been ranked 161 out of 189 countries for the enforcement of contracts

– Our legal system is ranked 5th out of 8 in South Asia.

– Land, Partition and Testamentary cases on average take a generation to be settled.

– A criminal trial takes on average 9½ years to conclude in the High Court.

– A criminal matter on average will take a year to be fixed for appeal and 3-4 years for the said appeal to be completed.

But this is not all. From 1978, we have had justiciable fundamental rights. Fundamental is defined as “forming a necessary base or core; of central importance.” Therefore, one would expect fundamental rights cases to be given higher priority than the cases listed above.

But that is not the case. It took the Supreme Court until 2021 February to issue a decision on a fundamental rights case, Kurukulasuriya v Sri Lanka Rupavahini Corporation (SC FR Application No. 556/2008 & SC FR Application No. 557/2008), notwithstanding the unequivocal language of Article 126(5) of the Constitution: “The Supreme Court shall hear and finally dispose of any petition or reference under this Article within two months of the filing of such petition . . ..” Instead of two months, it took 145 months.

It is said that justice delayed is justice denied. Can it be said that justiciable fundamental rights exist in Sri Lanka?

Then let us look beyond law’s delays, at egregious injustice. At qualitatively bad decisions. We had a Chief Justice who publicly admitted that he absolved the current Prime Minister in the Helping Hambantota case on political grounds.

But this man’s unjust decisions were many, as I documented in an article published in the Financial Times of 27th November 2008. A bench headed by this Chief Justice decided on the 21st of July 2008 (CS/FR 209/2007) a matter that only came up for argument on the 27th of November 2008 before a different bench. That’s right. The case was to come up in November, but the decision was given four months earlier.

The bench headed by the Chief Justice ruled on the tax exemption in July: “The tax relief granted to JKH was not permissible under the existing Regulations and JKH got an amendment tailor made for its purpose and secured the tax exemption” (CS/FR 209/2007, pp. 60-61). Yet, the respondents in the case that came up for argument in November, including the then BOI Chairman Dhammika Perera, the BOI Chairman when the tax exemption was granted Arjuna Mahendran, and former Commissioner General of Inland Revenue A.A. Wijepala, all needed to determine the legality of the exemption, were not among those noticed in CS/FR 209/2007.

By initiating a separate case that was taken up for argument on 27th November and serving notice on the above individuals, the plaintiffs of CS/FR 209/2007 conceded that the tax matter was not part of that case. Yet, the Chief Justice issued a ruling, violating natural justice.

Was the former Chief Justice the only malefactor? What about the other justices on that bench? What about the counsel? I purposely published my indictment on 27th November 2008, the day the tax-exemption case was to be taken up.

It would have been difficult to miss because the editors had put a black border around it and stated that they were not responsible for the content.

Did anyone in the judiciary or the legal profession do anything about it? Was an inquiry initiated? No. Is it unreasonable to conclude that the rot in the legal system was not limited to one out-of-control Chief Justice?

Has the Attorney General’s Department, which wields enormous power, been insulated from the rot? Does it exercise prosecutorial discretion in a fair and reasonable manner? The large number of prosecutions dropped when governments change raise legitimate doubt.

Does the Legal Draftsman’s Department do its job in a professional manner? How could a Constitutional Amendment that sets a quorum of three for an Elections Commission with a membership of three have been cleared by that Department?

How could it have neglected to include the Consolidated Fund as a continuing source of revenue for the Fund of the Disaster Management Council in the Disaster Management Act, No. 13 of 2005?

What is being done?

The current Minister of Justice is striking the right notes:

“It is vital that we look at a complete structural change from end to end and roll it out in a targeted and efficient way. We have to stop looking at the legal profession as one which exists solely for the sustenance of its members, but as one which plays a much more important role as a public centric body which is driving the justice system forward – one which is ready to innovate, to evolve and to take the right decisions at the right time to create a paradigm shift in the administration of justice.”

Even if done in a way that was not quite proper, the Minister has increased the number of judges in the superior courts. Funds have been allocated for court automation. It is hoped that the foundation laid by the comprehensive study completed in 2017 and the extensive consultations the ICT Agency conducted with the judges of the superior courts in 2019 will be built upon.

The above actions will, if adapted from a working system in another country, carefully piloted and scaled up, and supported with the necessary technical personnel, fix the dysfunctions in the “registry” part of the court system, which involves, or should involve, low discretion. If the system is transparent to lawyers, litigants and the public and is hardened to resist malicious attacks and manipulation, a key piece of the solution will be in place. But this will not, by itself, yield the desired outcomes.

The procedures and rules must be redesigned placing the needs of the litigants at the center, and not those of the lawyers and the judges. Even if it is a monopoly buttressed by archaic and arbitrary contempt-of-court rules, what the courts do is supply a service.

The litigants want a service, and they pay for it, either directly or through their taxes. They should be treated with respect and provided the services they seek at high levels of quality.

Decisions, even against those charged for criminal offenses should be of high quality in that they have been reached based on the relevant procedure, and are based on the best possible evidence. High quality also means not having to live in limbo for years, while lawyers and judges take their own cool time.

Unless procedures are reformed to put the litigants at the center, law’s delays will continue. Judges must work reasonable hours and they must impose discipline on lawyers by refusing frivolous requests for postponements. Section 63(2) of the Colombo Port City Economic Commission bill illustrates the dysfunctions of the current system:

“In order to foster international investor confidence in the ease of doing business and in the enforcement of contracts, in the national interest and in the interest of the advancement of the national economy, the inability of a particular attorney-at-law to appear before the Court on a particular date for personal reasons (including engagement to appear on that date in any other court or tribunal) shall not be a ground for postponement of commencement or continuation of the trial or be regarded as an exceptional ground warranting such postponements.”

For cases involving companies registered with the Port City Commission, the conventional rules that privilege the convenience of the lawyers are not to apply. But the rest of us will not only have to continue to put our lives on hold for the convenience of the lawyers and judges; we will also have to suffer the indignity of the fast-track litigants from the Port City cutting in front of us in the queue.

Simply reforming the rules will not suffice. The overall quality of legal education must be improved with a greater openness to innovation. The lowering of the protectionist barriers erected to safeguard the earning potential of members of the legal profession is a necessary condition. In recent debates around bilateral agreements dealing with trade in services, activist engineers told me that they need the kinds of protections the lawyers had erected for themselves against foreign competition.

Innovation requires the transfer of tacit knowledge possible only by day-to-day interactions. It is energized by competition. It is only when the legal profession becomes open to innovation that the judges who are drawn from it can become innovative and responsive.

All professions are protective of the pecuniary interests of their members. They fight back when those interests are threatened in any way. Lawyers are fearsome adversaries. Even the most astute and committed politicians approach legal reform with trepidation. They understand that the reform will take the form of trench warfare unlikely to yield results within the political cycle. They devise workarounds.

Politicians can at least try. System-level workarounds are unavailable to ordinary citizens and businesses. Their workarounds are petty and, in some cases, illegal. They limit transactions to trusted parties, knowing unenforceable contracts are meaningless. They seek the services of thugs to enforce contracts. They keep buildings that can be rented for revenue empty.
Workarounds

The proposed Colombo Port City Commission is a workaround.

Legal-system-related factors are a main reason Sri Lanka is ranked 99th out of 190 countries in the Ease of Doing Business Indicator. Even Nepal is ahead of us; Pakistan is about to catch up. Poor performance in resolving insolvency and enforcing contracts are major contributors to Sri Lanka’s low rank. On enforcing contracts, the country is ranked 164th.

It is unlikely that high-profile financial and service businesses will want to locate offices in Sri Lanka in these circumstances. Despairing that the legal system can be improved, the drafters of the Port City Commission Bill propose to make arbitration by the International Commercial Dispute Resolution Center that is to be established within the Port City mandatory for disputes arising within its area of authority. They also propose a fast-track, exemplified by section 63(2) quoted above, for engagement with the Sri Lankan courts if required.

Despite all the talk of how bad bypassing the Sri Lankan legal system is, this has been going on for a long time.

The disputes between several international banks and the Ceylon Petroleum Corporation over hedging contracts entered in 2008 in the first Mahinda Rajapaksa government were not resolved by the Sri Lankan courts. Arbitrations on the contracts with Standard Chartered and Citibank commenced, respectively, before the English High Court and the London Court of International Arbitration.

Deutsche Bank’s arbitral proceedings against Sri Lanka for the actions of the CPC, Central Bank and the Supreme Court in relation to the failure to perform the hedging agreement were at the International Centre for Settlement of Investment Disputes (ICSID), an organization established by the 1965 Convention for Settlement of Investment Disputes between States and Nationals of other States (ICSID Convention).

The CPC lost the cases. They also bore the considerable costs of participation in expensive cities.

The legal agreements governing the Sri Lanka Telecom privatization by the first Kumaratunga government in 1998 did not give rise to a need for dispute resolution. But had such arisen, the arbitration would have been in Singapore under that country’s laws.

In this context, it is unlikely that commercial disputes where referral to the Dispute Settlement Center within the Port City is not mandatory will come to the Sri Lankan courts. They will go to Singapore, London, Geneva, or Washington DC. They will bypass the Sri Lankan legal system, understandably. At least the International Commercial Dispute Resolution Center will be on Sri Lankan soil and the lawyers need not be paid per diems.

Effects of workarounds

The petty workarounds of the citizen and the businessperson yield no good results. They simply overburden other parts of the system and let resources lie fallow.

We like to teach the Coase Theorem which describes the economic efficiency of an economic allocation or outcome in the presence of externalities. The theorem postulates that if trade in an externality is possible and there are sufficiently low transaction costs, bargaining will lead to a Pareto efficient outcome regardless of the initial allocation of property.

But with a dysfunctional legal system, the condition of properly defined property rights does not exist. Coasean bargaining is limited to the classroom. We are compelled to fall back on the command-and-control capabilities of the state, overburdening it further.

The system-level workaround of the Port City Commission Law could be a holding action until we improve our legal system and associated processes of relevance to investors and service industries that are to be attracted to the Port City.

In the same way that the Greater Colombo Economic Commission (GCEC) was to be a holding action until we improved the provision of planning, utility and related services throughout the country, there could be a plan to gradually bring the enclave within the general legal system which has been improved in the meanwhile. The doing business indicator measures good governance in the country as a whole (though for some components they focus on the capital), not in special enclaves.

It would be good if that were the case. But looking at the situation in the zones managed by the Board of Investment as the successor to the GCEC, we can see that the transition has not been completed even some 40 years later.

Even today, the services offered by the BOI in the zones are superior to those outside. We in Sri Lanka appear to be content with running superior systems and single windows for foreigners (and Sri Lankan who achieve such status) while letting the rest of the country suffer under second-rate systems and multiple windows.

The hope, always, is that the island of good governance will catalyze and drive reforms in the surrounding ocean of bad governance; that the land will take over the sea. We keep hoping.

Rohan Samarajiva is founding Chair of LIRNEasia, an ICT policy and regulation think tank active across emerging Asia and the Pacific. He was CEO from 2004 to 2012. He is also an advisor to the Advocata Institute.

Fertiliser ban is flawed

Originally appeared on The Daily FT

By Prof. Rohan Samarajiva

The Cabinet Paper banning fertiliser, pesticide, and weedicide imports with immediate effect that was rubber-stamped last week without discussion constitutes a sea change in Sri Lanka’s agriculture policy. Its implications for consumers, for the livelihoods of farmers, and for those who have invested in agriculture and related sectors are vast. 

Despite the 20th Amendment, it is wrong to marginalise Parliament and to ignore State agencies with expertise. Because agriculture is a devolved subject, officials in the Provincial Councils should be consulted even in the absence of elected Council members. Given the expropriatory effects on the private property of those whose investments are affected, the authority of the Courts as the guardians of fundamental rights and as the upholders of equity is likely to be invoked.

No mandate for change

The Cabinet Paper is rather unusual. The entire justification for the proposed actions is anchored on the President’s election manifesto. No references are provided to studies, committee reports, etc.

It is foolhardy to build national policy on the weak foundation of manifesto promises. Each manifesto contains a multiplicity of promises. Was the vote a considered approval for each of those promises? 

The primary purpose of a manifesto is to convince citizens to vote for the candidate or political party presenting it. The secondary purpose is to gain legitimacy for specific actions. Manifesto making is political not scientific or systematic. 

Those who have been involved in manifesto making will testify to the opacity of the process, wherein what is accepted one day can disappear the next and new clauses and conditions can mysteriously appear even after “finalisation”.

Contributions can be sought, and consultations conducted, but in the end, decisions are made by a few in proverbial “smoke-filled rooms.” A manifesto is, at most, broadly indicative of orientation and priority-setting. Given the partisan and opaque procedure used to develop a manifesto, errors and impossible promises are unavoidable.

But because the Cabinet Paper lacks any other justification, one must look. Rather than rely solely on the quoted excerpts, I went to the source. The proposed actions are inconsistent with the language of the manifesto.

In order to guarantee the people’s right to such safe food, the entire Sri Lankan agriculture will be promoted to use organic fertilisers during the next 10 years. For this, production of organic fertiliser will be accelerated.

• To resuscitate the farming community, we need to replace the existing fertiliser subsidy scheme with an alternative system. In the new system, the inorganic and organic fertiliser both will be provided free of charge to farmers. They will be promoted to shift gradually into a complete system using entirely carbonic fertiliser.

• A system of assistance will be introduced to convert traditional farming villages into users of only organic fertiliser.

The language is anchored on food safety. But the ban affects fertilisers and chemicals used for all crops, not just what is consumed by citizens. There is a commitment to provide inorganic fertiliser free. The transition is to take place over a decade. These actions are to be taken in the context of “a new national agricultural policy would be introduced after an in-depth review of the present policies.” This promise is prefaced by a condemnation of “policy that changes from one season to another”.

No national policy based on review of existing policies and experience; no assessment of the experience of other countries; a policy that changes things in one week not a season. And most importantly, the telescoping of a 10-year process into a few months. Sudden, not gradual. Instead of free inorganic fertiliser, a ban. Not limited to traditional villages but across the board. The proposed bans lack a mandate.

Procedurally flawed

A change in a policy with broad impact requires care and caution. 

The change may do much good, as the Cabinet Paper claims. Because of the repeated claims that our food is contaminated with “vasa visa,” most consumers would support a change away from chemical fertiliser and pesticides. But they are unlikely to accept higher prices and unavailability. Hotels are unlikely to accept “ugly fruit”. Growers are unlikely to accept drastically reduced yields and/or inability to market their produce at prices that are above costs of production. The net benefit must be demonstrated, not simply asserted.

Growers large and small will be unhappy about being unable to recover the investments they have made in preparations for growing or in crops in the ground by this sudden reversal in policy. This response will also be shared by other participants in the sector who had entered perfectly legal contracts but are now unable to clear their shipments from the port. It is common sense for the government to give adequate notice of a change in policy or the law so that affected parties can make the necessary adjustments to their business practices minimising losses.

Policy changes that can do good, can also do harm. It is customary in policy formulation and implementation to look at relevant cases in other countries or in this country. Risk assessment, identification of collateral effects, and careful structuring of rules to avoid negative outcomes can be done by government officials or by external consultants with the required expertise. When the government liberalised the market for international telephony in 2003, we studied prior experiences in countries including Hong Kong (the most liberalised market in Asia) and India (to learn what missteps to avoid). 

The President claims that Sri Lanka will be the first to go all-organic. A cursory internet search will show that a fellow SAARC country, Bhutan, announced the intention to go all-organic in 2008; and that its experience has been assessed by independent scholars and published in the peer-reviewed and open scientific publication PLOS ONE in 2018 (DOI =10.1371/journal.pone.0199025). The abstract states: 

Organic agriculture (OA) is considered a strategy to make agriculture more sustainable. Bhutan has embraced the ambitious goal of becoming the world’s first 100% organic nation. By analysing recent on-farm data in Bhutan, we found organic crop yields on average to be 24% lower than conventional yields. Based on these yield gaps, we assess the effects of the 100% organic conversion policy by employing an economy-wide computable general equilibrium (CGE) model with detailed representation of Bhutan’s agricultural sector incorporating agroecological zones, crop nutrients, and field operations. Despite a low dependency on agrochemicals from the onset of this initiative, we find a considerable reduction in Bhutan’s GDP, substantial welfare losses, particularly for non-agricultural households, and adverse impacts on food security.

Does this mean that no other country should go all-organic? No. Is this the only study? No. The purpose of looking at the experience of others is to learn from them. It is irresponsible not make the effort to mitigate the negative impacts will fall upon consumers, growers and others in the sector and to design the policy most suited for local conditions.

Even within the country, prior knowledge existed because the fiasco of the previous Government’s effort to promote organic farming at the behest of Ven. Athuraliye Rathana, MP. That ended with much waste of public funds and the shutting down of the implementing agency, SEMA. It would not have been all wasted if the present Government made the effort to learn from it. 

The Government appears to have learned little from the palm oil ban that had to be walked back and modified. It is normal procedure to circulate a Cabinet Paper to all relevant Ministries for their input to and to win concurrence. Walking back and modifying is what happens when this procedure is not followed.

This blanket ban does not affect only food items consumed within Sri Lanka. It affects subjects under multiple Ministries. It can devastate non-food segments such as foliage exports. It is likely to strangle the fast-growing fruit and vegetable export industry which was subject to rigorous enforcement of standards such as Euro GAP that my organisation worked on with the Department of Agriculture and the exporters association. The Legislature can choose to take actions that result in such collateral effects. But it should at least have considered them. This Cabinet Paper does not.

What should be done

The Government should suspend the implementation of the Cabinet Paper and appoint an inter-Ministry committee of experts with the power to co-opt external experts to report back on a practical method of achieving the objectives of ensuring food safety and environmental conservation. Given the complexity of the changes and the collateral effects, it is best that a pilot be conducted. The larger program design should be based on those learnings. 

If the Government does not act responsibly, the Opposition should demand a select committee, or at least a debate in Parliament. Stakeholders should move the courts. Our food and our livelihoods are too important to be cavalierly toyed with by those learning on the job.

Rohan Samarajiva is founding Chair of LIRNEasia, an ICT policy and regulation think tank active across emerging Asia and the Pacific. He was CEO from 2004 to 2012. He is also an advisor to the Advocata Institute.

In the Port City debate, hypocrisy is bipartisan

Originally appeared on The Daily FT

By Prof. Rohan Samarajiva

It is hypocritical for a political coalition that demonised the then Government and minorities by vigorously promoting the principle of ‘one country, one law’, to then propose to carve out the Port City development as a geographical area exempt from many of the laws and practices prevalent in the country. Those who sow the wind, reap the whirlwind. Because of this hypocrisy, the Government has great difficulty doing what it knows is the right thing for the country.

It is hypocritical for members of the dominant party in the previous Government (now split) to protest vociferously against the special treatment proposed for investors by the Colombo Port City Economic Commission Bill. They full well know the dysfunctions of the investment environment in Sri Lanka. The then Government was working on a bill on the same lines. There was discussion on placing the financial city within the jurisdiction of the English courts then.

It is not hypocritical for the Bar Association and other interveners to object to the proposal to establish an International Commercial Dispute Resolution Centre and to the associated legal workarounds. But it is wrong and self-serving. Members of the legal profession, more than anyone else, should know how dysfunctional the country’s legal system has become.

At the 47th Annual Convocation of the Bar Association, the Minister of Justice said that the average time to enforce a commercial contract in this country is 1,318 days (3.5 years). It is said to take one year to get a date for an appeal to be fixed for hearing on a criminal matter.

All of us who worked on improving Sri Lanka’s rank in the Ease of Doing Business Indicator know that the legal-system-related factors are a major factor in Sri Lanka being relegated to the back of the class. Poor performance in resolving insolvency and enforcing contracts are major contributors to Sri Lanka being ranked 99th out of 190 countries. On enforcing contracts, we are ranked 164th.

So, the previous Government was right when they considered placing contracts of investors in the Port City under English commercial courts. The experts who crafted the present bill were right in making arbitration by the International Commercial Dispute Resolution Centre mandatory and allowing for a fast-track engagement with the Sri Lankan courts as needed. Commercial arbitration is nothing new in Sri Lanka. To argue that it violates our Constitution is a little farfetched.

But of course, professional associations rarely allow logic and the national interest to come in the way of the financial and related interests of the members. The Sri Lankan legal system is one of the worst in the world, partly because the powerful private interests of the legal professionals are given priority over the interests of litigants and the country. It is not in their interest to admit how broken the system, they profit off, is. The Colombo Port City Economic Commission Bill is an indictment of that system. Lawyers, individually (as a prominent politician/President’s Counsel so vividly demonstrated) and collectively, are likely to oppose it.

The Port City bill is a workaround. It is needed because our systems are broken. President J.R. Jayewardene established the Greater Colombo Economic Commission (predecessor to the Board of Investment) as a workaround solution, by Act No. 4 of 1978 because our systems were a barrier to the attraction of needed foreign investment. We have the Katunayake and Biyagama zones and the various value-added manufacturing industries that are keeping our economy afloat, thanks to that workaround.

The tragedy is that 43 years later we are still doing workarounds. We need these stopgap measures, but we need to give the highest importance to fix all the systems that affect all our citizens, not just the foreign investors. Despite the specific mention of the doing business indicator in the Port City Commission Bill, the indicator is not done for enclaves but for the country as a whole. Improving the key systems across the country is what others are doing. India is now more than 30 places ahead of Sri Lanka, thanks to dedicated task forces. China is ranked 31st, more than 30 positions ahead of India and more than 60 ahead of Sri Lanka. I invite the readers to look at how well our competitor, Viet Nam, is doing.

If we do not improve the ease of doing business for all, we will be overtaken by Pakistan soon. They are taking concerted action to improve performance on the components and are now just nine places behind. Do the work around, but for God’s sake, focus on system improvements throughout. Define threshold levels in the Port City Bill itself when the workarounds can be discontinued, and we can celebrate living in a country where the legal system does not require bypass.

Rohan Samarajiva is founding Chair of LIRNEasia, an ICT policy and regulation think tank active across emerging Asia and the Pacific. He was CEO from 2004 to 2012. He is also an advisor to the Advocata Institute.

The state minister is right on alcohol

Originally appeared on The Daily FT

By Prof. Rohan Samarajiva

State Minister of Coconut, Kithul, Palmyrah and Rubber Cultivation Promotion and Related Industrial Product Manufacturing and Export Diversification Arundika Fernando was wrong in asking ASP Eric Perera to go easy on small-scale producers of illegal liquor. 

As ASP Perera correctly explained, police officers cannot make arbitrary distinctions between law breakers who are small scale and who are not. This country is plagued by abuse of prosecutorial discretion. It is wrong to demand that investigatory discretion be further abused too.

But the State Minister has a point. We should not be misdirecting scarce police resources on prosecuting producers of alcoholic beverages. We should change the law to reduce the financial incentives of operating illegal stills. 

The Minister of Public Security was wrong to transfer a law-abiding and apparently efficient senior police officer. Instead of engaging in such actions harmful to the efficient functioning of government (another consequence of the 20th Amendment), he should have focused his attention on the parlous state of law and order in this country. 

More than half of the police force of over 88,000 is still deployed on VIP security almost 12 years after the decapitation of the LTTE; and 30 years after the decapitation of the DJV, the military arm of the then JVP. Laws are not enforced without fear or favour. Most people are told to catch the law breakers and bring them to the police station. Sometimes the police are a greater threat to citizens than criminals. 

The story of Scotch 

Most decision-makers in this country have a liking for Scotch whiskey. Therefore, the story of Scotch may be more persuasive than the stories of arrack and baijiu (which will also be told).

As the distilling of whiskey became more popular in Scotland, legislators sought a piece of the action. The first taxes on Scotch were introduced in 1644 which led to an increase in illicit whisky distilling across Scotland. By the 1820s, as many as 14,000 illicit stills were being confiscated every year. More than half the whisky consumed in Scotland was illegal. It was even said that King George IV drank nothing but illegal Glenlivet.

In 1823 the Excise Act was passed, which permitted the distilling of whisky on payment of a license fee of GBP 10, and a set payment per gallon of proof spirit. Next time you partake, examine the label. It is likely that the bottler of your favourite beverage traces its origins to around 1823.

Even after COVID-19 and a punitive tariff imposed by the United States, earnings from the export of Scotch whiskey amounted to GBP 3.8 billion in 2020. The year before, it was GBP 4.9 billion. This does not include earnings from related activities such as whiskey tourism. Over two million visits to Scotch distilleries per year were reported before the pandemic hit. 

The story of arrack

Arrack manufacturing was developed during Dutch rule of the coastal areas. Exports grew rapidly under early British rule. Unlike its Scottish counterpart, the Excise Ordinance of 1834 consolidated legal production in a few large companies and made the pot still distillers illegal. Exports ceased.

It is possible that concerns over quality of the product, including periodic methanol poisoning, led to restrictive licensing. The manufacturing and consumption of hali arakku (arrack from pot stills), derogatively described as kasippu, was a major element of life in the coastal belt. The battle between the police and illicit distillers was never ending. When the men got incarcerated, women ran the business. 

It is this ancient tension that Arundika Fernando gives voice to. People believe the Government-sanctioned liquor is too expensive or that its quality has been compromised because of the incentives set in place by the excise taxes. Or they simply prefer the taste of the local product. The gap between what the Government-sanctioned liquor is sold for and the cost of producing hali arakku is large, permitting significant expenditure on bribes.

The State Minister should not be asking for selective enforcement of the law and ‘rehabilitation’ of small producers. There is no way a practice that has survived for a century or more can be eliminated by any form of ‘rehabilitation’. What he should be advocating is the reform of a law that criminalises industrious people and is an engine of black money that then poisons the rest of society. 

Reform the law

There are reasons to worry about excessive consumption of intoxicants. People can get sick and, in a publicly funded healthcare system like ours, the costs of treatment will be borne by all. People have been using intoxicants of various forms throughout history, suggesting that stamping out the practice is unrealistic. Yet it is wise to do things like control advertising of alcohol, which Sri Lanka has been doing since the 1990s, and to promote moderation. 

It is unlikely that the Sri Lankan excise and police authorities will ever be able to fully stamp out pot still production. The resources needed for stronger enforcement would cause further harm to the weakened law enforcement that exists today. 

Government should look at a comprehensive solution that includes rationalisation of excise taxes, whereby what now goes under the table to politicians and police personnel comes to the State. Encouragement should be given to the development of premium brands associated with colourful narratives that can do well in export markets and even in the wealthier market segments within the country.  Arrack-centric tourism should be promoted. Reduction of excise taxes combined with a reallocation of enforcement resources will create the right conditions for the needed focus on ensuring the quality of the manufactured output, putting a stop to what many believe to be rampant tampering. The world’s most consumed alcoholic beverage is not whiskey. It is Baijiu, the most famous brand being Moutai. What used to be quick way of getting drunk has been undergoing an extraordinary transformation in recent times, with all sorts of premium products and brands being developed and marketed outside China. Some bottles are priced in the thousands of dollars. 

Sri Lanka’s arrack has greater potential than the Chinese firewater. But the potential cannot be realised only by the old established big companies. Legalising small producers and unleashing their innovative energy is the essential precondition for Sri Lanka regaining its position as an exporter of premium alcohol products from coconut, kithul, and palmyrah.  The State Minister should proceed with confidence. If the President is against this kind of initiative, he would not have created a separate Ministry for Coconut, Kithul, Palmyrah and Rubber Cultivation Promotion and Related Industrial Product Manufacturing and Export Diversification. There is only so much you can do with coconut ekels.

Rohan Samarajiva is founding Chair of LIRNEasia, an ICT policy and regulation think tank active across emerging Asia and the Pacific. He was CEO from 2004 to 2012. He is also an advisor to the Advocata Institute.

Vaccine policy : is it time for the paid option ?

Originally appeared on Daily FT

By Prof. Rohan Samarajiva

When there is a population of 22 million and vaccines sufficient for 300,000, it is logical to give priority to frontline workers (health and other) who are most exposed to risks of infection. They are exposed by the nature of what they do for all of us. If they get sick, everyone suffers, not just them. There won’t be trained people who can care for the sick and bring the pandemic under control.

Comments on the efficacy, risks, etc. of vaccines should be made by those with specialised knowledge on the subject. But those of us working at the intersection of economics, law and technology can make useful contributions as well.

What kind of good is vaccination?

There is a limited stock of vaccines available in a country at a given time. A vial of vaccine is not a public good that cannot be sold for a price. One person getting a jab means there is one less for another. It can easily be given or denied. It is a private good that can be supplied through the market.

But vaccinations have strong positive externalities. The true benefits come to individuals (and countries) only when a significant majority of the population (or countries with which the country is interacting) are vaccinated. Benefits flow not only to the person getting the vaccination, but to others in her environment. 

Vaccinations can be sold through the market, but it is better if at least some quantity is given away free to those who are hesitant to pay. In fact, if there is resistance to vaccination for whatever reason, additional inducements or penalties can be justified.

How should limited stocks be allocated?

When there is a population of 22 million and vaccines sufficient for 300,000, it is logical to give priority to frontline workers (health and other) who are most exposed to risks of infection. They are exposed by the nature of what they do for all of us. If they get sick, everyone suffers, not just them. There won’t be trained people who can care for the sick and bring the pandemic under control.  

Who is next in priority? Most societies would privilege those most at risk, in the case of COVID-19 those who are elderly with other illnesses. The expected short duration of vaccine effectiveness makes this a relatively easy choice.

Those engaged in processing food perform essential functions. Infections in other countries show that such workers are facing high risks. Should they be next in priority after frontline health workers? What about those who work in close proximity in factories to keep the exports going? Without them, we may not have the resources to fight the pandemic.

What about persons such as politicians and religious functionaries whose functions require extensive human interactions and thus place them at some risk? They may be distinguished from frontline health workers who are compelled to expose themselves to risk. 

Should it be possible to pay?  

The various vaccines that are being made available are priced from around $ 3 (AstraZeneca-Oxford/Covishield) to $ 33 (Moderna). Bulk purchases by governments and programs such as Covax will make some vaccinations free of charge to citizens. Should those willing to pay be allowed to obtain vaccines on a parallel track?

For example, an export firm may be willing to spend its own funds to protect its workforce. As long as it does not disturb the priority list for free vaccines, is there any harm?

If vaccination for payment is acceptable for companies, why not for individuals? Those who wish to travel may require vaccines even if they do not fall within priority categories. It may be cleaner to allow them access to a payment-based option, than make case-by-case determinations on jumping the queue. Should the pay option be limited for those with cause as above, or simply open to anyone who is willing to pay?

This is how the Sri Lankan healthcare system works anyway. Those willing to pay can reach the specialists of their choice, technically with shorter waiting times, than those who go through the free channels in State hospitals. 

The same with hospital care. Those wanting the conveniences of attached bathrooms and TVs, can use private hospitals. Not perfect, but works. And in conditions of resource constraint, it may be the sensible option if the free channel can be protected from harm by the pay option. 

Vaccination and trust

Injecting one’s body with foreign substances requires trust in science and scientists. It is because vaccinations are risky that extensive trials are conducted, and rigorous approval procedures have been put in place. Government officials are instructed on how to communicate about vaccinations, specifically about the associated and unavoidable risks and unknowns. 

There is some percentage of the populace that is fearful of injections and untrusting of science. There are also those in the media who seek to profit by creating distrust, for example by peddling patent falsehoods about microchips being injected along with the vaccines. Stories about genes being altered are also in this category.

It is hypocritical for a political coalition that demonised the then Government and minorities by vigorously promoting the principle of ‘one country, one law’, to then propose to carve out the Port City development as a geographical area exempt from many of the laws and practices prevalent in the country. Those who sow the wind, reap the whirlwind. Because of this hypocrisy, the Government has great difficulty doing what it knows is the right thing for the country.

It is hypocritical for members of the dominant party in the previous Government (now split) to protest vociferously against the special treatment proposed for investors by the Colombo Port City Economic Commission Bill. They full well know the dysfunctions of the investment environment in Sri Lanka. The then Government was working on a bill on the same lines. There was discussion on placing the financial city within the jurisdiction of the English courts then.

It is not hypocritical for the Bar Association and other interveners to object to the proposal to establish an International Commercial Dispute Resolution Centre and to the associated legal workarounds. But it is wrong and self-serving. Members of the legal profession, more than anyone else, should know how dysfunctional the country’s legal system has become.

At the 47th Annual Convocation of the Bar Association, the Minister of Justice said that the average time to enforce a commercial contract in this country is 1,318 days (3.5 years). It is said to take one year to get a date for an appeal to be fixed for hearing on a criminal matter.

All of us who worked on improving Sri Lanka’s rank in the Ease of Doing Business Indicator know that the legal-system-related factors are a major factor in Sri Lanka being relegated to the back of the class. Poor performance in resolving insolvency and enforcing contracts are major contributors to Sri Lanka being ranked 99th out of 190 countries. On enforcing contracts, we are ranked 164th.

So, the previous Government was right when they considered placing contracts of investors in the Port City under English commercial courts. The experts who crafted the present bill were right in making arbitration by the International Commercial Dispute Resolution Centre mandatory and allowing for a fast-track engagement with the Sri Lankan courts as needed. Commercial arbitration is nothing new in Sri Lanka. To argue that it violates our Constitution is a little farfetched.

But of course, professional associations rarely allow logic and the national interest to come in the way of the financial and related interests of the members. The Sri Lankan legal system is one of the worst in the world, partly because the powerful private interests of the legal professionals are given priority over the interests of litigants and the country. It is not in their interest to admit how broken the system, they profit off, is. The Colombo Port City Economic Commission Bill is an indictment of that system. Lawyers, individually (as a prominent politician/President’s Counsel so vividly demonstrated) and collectively, are likely to oppose it.

The Port City bill is a workaround. It is needed because our systems are broken. President J.R. Jayewardene established the Greater Colombo Economic Commission (predecessor to the Board of Investment) as a workaround solution, by Act No. 4 of 1978 because our systems were a barrier to the attraction of needed foreign investment. We have the Katunayake and Biyagama zones and the various value-added manufacturing industries that are keeping our economy afloat, thanks to that workaround.

The tragedy is that 43 years later we are still doing workarounds. We need these stopgap measures, but we need to give the highest importance to fix all the systems that affect all our citizens, not just the foreign investors. Despite the specific mention of the doing business indicator in the Port City Commission Bill, the indicator is not done for enclaves but for the country as a whole. Improving the key systems across the country is what others are doing. India is now more than 30 places ahead of Sri Lanka, thanks to dedicated task forces. China is ranked 31st, more than 30 positions ahead of India and more than 60 ahead of Sri Lanka. I invite the readers to look at how well our competitor, Viet Nam, is doing.

If we do not improve the ease of doing business for all, we will be overtaken by Pakistan soon. They are taking concerted action to improve performance on the components and are now just nine places behind. Do the work around, but for God’s sake, focus on system improvements throughout. Define threshold levels in the Port City Bill itself when the workarounds can be discontinued, and we can celebrate living in a country where the legal system does not require bypass.

Rohan Samarajiva is founding Chair of LIRNEasia, an ICT policy and regulation think tank active across emerging Asia and the Pacific. He was CEO from 2004 to 2012. He is also an advisor to the Advocata Institute.

Interdependency, the framework for India-Sri Lanka relations

Originally appeared on The Daily FT

By Prof. Rohan Samarajiva

Governments on both sides have changed several times since work began 18 years ago on a comprehensive economic partnership agreement between Sri Lanka and India. One constant has been the failure to complete the agreement.

This is cause enough to step back and reassess strategy and tactics.

Is a legally-binding agreement necessary?

China’s investments and trading activities in Sri Lanka are growing rapidly, with no agreement in place. Perhaps this indicates that agreements are not necessary.

Because most economic actors in both India and Sri Lanka have a degree of autonomy from the state, companies will not simply invest as directed by political authorities to satisfy strategic objectives.

I recall the lack of enthusiasm on the part of India’s majority-State-owned IOC to take over the colonial-era oil tanks in Trincomalee in 2002, in the absence of a viable business plan. They obeyed their Government’s directions only when the tanks were bundled with a fuel-distribution business.

Private entities will take risks, but they would prefer reduced risks of administrative expropriation. What bilateral or other trade and investment agreements do is reduce risks flowing from state action.

Economic actors who are immersed in “deal culture” dislike legally binding trade and investment agreements. They prefer deals worked out through favorably disposed politicians and officials. Their opposition is not worded in this language, but is clothed in the rhetoric of national sovereignty.

In practice, the authorisations for employment of foreign professionals and for investment in the telecom and IT industries in Sri Lanka were GATS Plus, or more liberal than the legal commitments that had been made.

I pointed this out to a leading opponent of the IT sector commitments in the India-Sri Lanka agreement. His response was that unilateral liberalisation could be withdrawn, which was not the case with treaty-level bilateral agreements. The external investor or trader is thus exposed to risks of rule changes damaging to his business case. This can only be mitigated by partnering with a deal maker.

The deal maker gets fees and a share in the operating entity, in return for greasing palms. I recall a well-educated and connected Sri Lankan then residing in the US coming as part of a delegation to talk about a satellite telephony license when I served as Director-General of Telecommunication. As the group was leaving, he tells me quietly in Sinhala to mandate a local partner so he can get in the game. No licenses were given so the question of creating a legal requirement to pay fees and a share of earnings to the deal maker did not arise.

These rent-seekers must be marginalised in the national interest. But they draw their strength from the power of national-sovereignty rhetoric, especially in relation to India, the focus of atavistic fears going back to the depredations of Kalinga Magha in the 13th Century CE. The public and the politicians are persuaded more by these appeals to emotion and less by evidence-based claims about the benefits of trade and investment.

A new frame

What people fear is dependency. If the electric grid is connected to India, they fear it will be shut off or constricted. They see how Bhutan’s election was influenced by constrictions on fuel supplies and fear Sri Lanka’s internal decision making may be compromised because of dependence on India. India is 50 times the size of Sri Lanka. Dependency on India is feared.

These fears can be overcome by changing the frame to that of interdependency. India could have crippled the Bhutanese State if they stopped purchases of electricity, which constitutes 70% of Bhutan’s exports and makes up most of Government revenues. Yet, a halt in electricity purchases is unlikely because that would cause massive disruptions to the economies of West Bengal, Bihar, Odisha, and Jharkhand. Disruption of the relationship would cause damage to both sides. Keeping it going benefits both. This is interdependency.

The continued success of the Port of Colombo depends on its use for trans-shipment by India. If not for Indian volumes (over 70% of the total), Colombo would not be 25th largest container port in the world and would not be the 19th best-connected port according to UNCTAD. Especially before elections, Indian politicians talk up the need for a hub in South India to retain the trans-shipment payments now flowing to Colombo.

Recently, Prime Minister Modi announced a trans-shipment port in the Great Nicobar Island, which could damage Colombo’s position as a regional hub. If Indian containers are routed elsewhere, Colombo will soon lose its attractiveness to the shipping alliances. Sri Lankan exporters will lose direct and frequent sailings and the port would lose earnings from trans-shipment related services. India will have to invest massively in building up a new hub which may or may not have the proven efficiencies of Colombo. Definite loss for Sri Lanka; uncertain and costly outcome for India.

Addressing India’s concerns

India may be seeking to invest billions of dollars in a new port because they fear dependency on a foreign port with significant Chinese presence for vital freight movements. How can the India’s legitimate concerns be addressed?

One way is to allow India an equity stake in the Colombo Port. That was at the heart of the conversations with India about Sri Lankan ports since at least 2003, the latest manifestation being the tripartite agreement about Indian and Japanese investment in the East Container Terminal in the deep-draft South Harbour.

If this were completed as agreed, the incentives of India and Sri Lanka will be better aligned. In addition to enjoying the benefits of Colombo’s efficiencies and network economies, India would now also benefit as an equity investor. Security concerns would be assuaged.

India and Sri Lanka may also consider a bilateral agreement governing port services between the two countries. The 2003 report of the Joint Study Group on the India Sri Lanka Comprehensive Economic Partnership Agreement included negotiated language to this effect, wherein India would recognise the port of Colombo as a hub within the southern Indian maritime transportation system. The intention then was to include this as one element of the overall agreement covering trade in goods and services, in investment, and in cooperation and confidence building.

The two countries have failed to conclude a comprehensive agreement in 18 years. An interim solution would be narrow agreements wherever possible, one for maritime transportation, another for aviation, another for grid connectivity, and so on, each anchored on, and presented to stakeholders and the public in both countries framed in the language of, interdependency and win-win. In each case, concrete benefits will be gained, and confidence built. Objections based on fear of dependency and foreign stranglehold of key economic facilities may be refuted not just with arguments, but with ongoing experience of mutually-beneficial sectoral collaborations.

If a policy window opens for a comprehensive agreement, the opportunity can be taken. But even here, would it not be better to have ongoing “pilot projects” from which lessons can be learned? Pursuit of the comprehensive approach has been unproductive, so far. A different, incremental approach is worth trying.

Rohan Samarajiva is founding Chair of LIRNEasia, an ICT policy and regulation think tank active across emerging Asia and the Pacific. He was CEO from 2004 to 2012. He is also an advisor to the Advocata Institute.

Economic relations with India: What would a true patriot do about the Port?

Originally appeared on The Daily FT

By Prof. Rohan Samarajiva

The East Container Terminal (ECT) in the South Harbour of the Port of Colombo has become a flashpoint of nationalist agitation. Agreement had been solemnly concluded to develop the ECT in collaboration with the governments of India and Japan. Some, fronted by trade unions, are agitating to scrap the agreement and make the terminal one that is fully owned and operated by the Sri Lanka Ports Authority (SLPA). Hoary arguments about selling national assets are being trotted out again.

What would a true patriot do?

True patriotism asks what advances the life chances of the people living on this island; it asks what reduces the harms that may befall them. A realistic assessment of the problem at hand must be the first step. The Port of Colombo comprises operations by three entities: the CICT which handles 40% of the business through one terminal is majority-owned by China’s CM Ports (SLPA has 15% ownership); the SAGT is 85% owned by a consortium including JKH, Maersk/APM Terminals and Evergreen Marine Co. (SLPA owns the rest); and JCT which is fully owned by the SLPA.

The ECT is the second terminal to be made operational in the South Harbour which remains the only deep-water port in the region capable of accommodating the largest ships. The Port of Colombo was the 25th largest in the world in 2018, in terms of container throughput, and showed rapid growth before the recent disruptions. An economy the size of Sri Lanka’s cannot support the world’s 25th largest port if all it handles is cargo originating from and terminating in the country. More than 70% of Colombo’s cargo is coming from or going to India. India’s two largest ports are JNPT in Maharashtra and Mundra in Gujarat. Colombo handles more Indian boxes than Mundra, arguably making it India’s second-largest port. If for some reason the Indian containers were not transshipped through Colombo, the losses to the Sri Lankan economy will be grave. The earnings from what is essentially an export of port services will cease. Colombo will no longer justify frequent liner service. Sri Lankan shippers will have to send their containers in small ships to a regional hub to be transshipped to the large vessels that no longer call at Colombo. Hub ports enjoy economies of networks.

The more ships call at a port that provides transshipment and related services, the more attractive that port becomes to other ships. It provides a degree of stickiness to a hub, but hub status is not permanent. If the quality of the services provided declines or prices are higher than those in competing ports, a big shipping alliance (three alliances are responsible for 80% of the container traffic) may pull back leading to the unravelling of hub status. One of the reasons Colombo is a preferred port for shipping alliances is its turnaround time: how quickly can a ship leave the port after unloading/loading. It is behind Singapore and other leading ports, but quite a bit ahead of Indian and Bangladeshi ports. However, the strikes that were launched before the elections on political matters unrelated to working conditions may be putting Colombo’s reputation at risk.

Alternatively, a government decision based on geo-political considerations may trigger the process. Especially before elections, Indian politicians come up with plans to build ports in the south of India that will create new employment and business opportunities and ‘save’ the $ 100 per container they claim goes to Colombo for transshipment. But the more real danger is the significant Chinese stake in Colombo Port which may be seen as a strategic vulnerability in the context of the simmering tensions between India and China. The Port of Colombo, which is dependent on transshipment business from a single country, is especially vulnerable in this regard.

Geopolitics

Even if one focuses solely on the Port of Colombo, the geo-political factors loom large. The largest terminal is owned and operated by a Chinese company. The refuelling of Chinese submarines in the port in 2014 was source of serious friction. The tensions between India and China are at a historical high currently. In this context, a decision to give an Indian company a stake in the ECT, and thereby in the success of the Port of Colombo, would give comfort to the securitywallas in New Delhi. It makes eminent sense in terms of safeguarding Colombo’s hub status and revenue stream. Whatever decision is taken about ECT will be interpreted in a larger context. Prime Minister Mahinda Rajapaksa has asked India to withdraw its interest in the under-utilised and money-losing eponymous Airport located in Mattala. The government is also reported to have asked India to give back the rights to the unused but controversial oil tanks in Trincomalee. The Indian government is likely to connect the dots in ways that reinforce the perception that the Rajapaksas are tilting toward China.

But what about not selling national assets?

The land and the location are not sold. The port continues to be owned by the SLPA. It is simply one section of the south harbour that is to be concessioned out for a defined period for a specified purpose to a consortium that will also include the SLPA. The land by itself does not produce value. Value is produced when the right kinds of investments (including the right kinds of gantry cranes, not what were ordered for a different location) are made and the right kinds of services at appropriate levels of quality are supplied. Because of the relative power of shipping interests, it is now common practice to allow shippers to have stakes in terminals. This is the case even in the highly efficient state-owned Port of Singapore.

For over two decades, parts of the Port of Colombo have been privately operated based on long-term contracts. Some of the members of the consortium that invested in SAGT in 1999 are foreign. CICT, the terminal showed the best performance, is at $ 600 million, one of the largest Chinese investments. It has been operational since 2013. The relationships leveraged by those companies and the efficiencies they have introduced have contributed to the Port of Colombo flourishing even when the Indian economy slowed down.

This experience alone should give comfort to those concerned about foreign investment in Sri Lanka’s infrastructure. The land is here, the millions of dollars in investment is fixed to that land and cannot be taken away, and the market relationships and skills the investors have brought have caused the entire port to improve. Sri Lanka earns from the export of port services, those who work for the partially foreign-owned companies make a good living, they all pay taxes, and the national economy benefits by having the 25th largest port in the world with direct sailings to key markets. A true patriot will understand that foreign investments in commercial enterprises are superior to foreign loans. In the former, the risks are shared. If the investment does not make profits, the foreign investor too is out of pocket. Thus, the investor has the incentive to make the business succeed. This is not the case when loans are taken to build and operate infrastructure on our own to satisfy some atavistic yearning. With loans, the risks are all on our side. Whether the business succeeds or not, the loan must be repaid. If something goes wrong, as has been repeatedly the case with the Norochcholai electricity generators built with Chinese loans, The China Ex-Im Bank does not suffer. Only we do.

So, a true patriot will not only understand the nature of modern port operations and the difference between loans and investment. She will also understand the geopolitical context and support the taking of precautionary measures to build the confidence of major actors such as India who can easily stymie efforts to advance the well-being of our citizens and reduce the harms that may befall them. A true patriot will support the government in its efforts to honour legal commitments and strengthen Sri Lanka’s most important relationship, that with our giant and proximate neighbour.

Rohan Samarajiva is founding Chair of LIRNEasia, an ICT policy and regulation think tank active across emerging Asia and the Pacific. He was CEO from 2004 to 2012. He is also an advisor to the Advocata Institute.

Resilient food supply: By command or through markets?

Originally appeared on The Daily FT

By Prof. Rohan Samarajiva

The COVID crisis

It is when something breaks that we notice. The curfews imposed at short notice to flatten the curve of COVID-19 infections damaged the food supply chains that Sri Lankan consumers had taken for granted since the demise of ration books that were central to our existence until the 1980s.

Since 2006, LIRNEasia has been studying fruit and vegetable supply chains in Sri Lanka centred on Sri Lanka’s largest wholesale market in Dambulla which was recently shut down by the Government along with several other wholesale markets. 

The closures were preceded by scenes of massive oversupply, frustrated farmers throwing away unsold produce in large quantities, claims that the traditional traders were exploitative “middlemen,” and counterclaims that politicians were seeking to replace them with their own middlemen, and so on. 

At the other end, consumers confined to their homes were complaining not only of difficulties in obtaining supplies but also in some cases of low quality and high prices. The Government’s response included short-term efforts to purchase unsaleable produce directly from farmers and to distribute through government channels. Understandably, it has been difficult to build supply chains from scratch in these strained circumstances. 

Reports of shortages and delivery delays emanating from the United States, home to some of the most complex and advanced food-supply chains, suggest it is unrealistic to expect food supply to be completely unaffected by shocks of this magnitude. Despite the stretching of food-supply chains over longer distances and across borders because of efficient logistics, the system did not collapse. It is reported that locked-down Indian coastal states found international supply chains for edible oils to be working better than domestic ones.

The COVID-19 shock may have impacted food-supply chains in various ways, including difficulties in delivering to homes due to lack of efficient warehouse facilities and logistics; lowered demand in specific segments (for example, the sudden elimination of demand for premium produce from tourist hotels and restaurants); general reduction of demand caused by frugality resulting from concerns about finances; failures in e-commerce, and especially in the form of difficulties in the discovery function wherein consumers locate retailers with desired price-quality bundles and in placing orders; and breakdowns in the producer-end of the supply chain, caused by staff shortages, transport problems and input shortages and delays.

Things were not that great before COVID-19. Growers were poor; supply fluctuated wildly as did prices; waste was pervasive across the supply chains; the jobs of those who work for the intermediaries were uncertain and poorly paid, and consumers were perennially unhappy. All political parties recognise the problem and have proposed solutions within various points in the planning-market spectrum. We should see a lot more promises on food security when the 2020 manifestoes come out.

Command solution

Around 10 years ago, the President’s Office was persuaded of a State-centric solution that rested on village-level officials collecting information on what crops were being grown and harvested for collation in a centrally administered database. When crops were being grown in excess of what the officials deemed adequate, they would command farmers to grow something else or deprive them of planting material, thereby balancing supply and demand. 

Despite many efforts including the development of IT systems, this approach appears to have failed to yield the expected results as evidenced by frequent reports of gluts and unhappy growers. Yet, the notion that the State can “discourage overproduction of certain vegetables” persists, as indicated by a joint letter to the President from the deans of eight agriculture faculties dated 14 April 2020.

The failure of the command model was preordained. It was tried for decades in the former Soviet Union and in China and failed miserably. It produced shortages and occasional gluts and left growers and consumers unhappy. Whenever the command model was relaxed, production went up. Nobel Laureate Friedrich von Hayek made the theoretical case against the command model as long ago as 1935.

For the command model to work, what crops farmers grow and harvest (and the losses they suffer in between) must be reported by officials or by the farmers. These activities are not supported by incentives for accuracy; indeed, the incentives are for the reporting of whatever causes the least trouble with the lowest transaction cost. There may even be incentives for under or over-reporting. 

Unlike in stock markets where all transactions occur on electronic platforms, price data from agricultural wholesale markets in Sri Lanka are manually collected and are open to error and manipulation. Even if the data is accurate, the processing is too complex, as shown by the debates between Hayek and Oskar Lange and colleagues in the 1930s. 

Market solution

Claims have been made at the highest levels that the current difficulties in food supplies indicate market failure. An information problem exists for sure, but not necessarily a market failure. 

The grower must decide what to grow in May based on the price the crop is likely to fetch in, say, August. That price will be determined by the law of supply and demand. How much of a particular crop is grown in May and how much demand there will be for that vegetable in August need to be known. How can a grower estimate demand in the future? She has to go by past patterns, such as prices fetched last August. This knowledge is not exclusive to one grower. If too many growers make planting decisions based on these kinds of common knowledge, a glut can be guaranteed in August. 

But if information on what others are planting is known, growers can make better decisions. Forward contracts is the best way of getting information. Here, a specialist with skin in the game collects and processes the information on supply and demand and offers forward contracts for August. If the data are incomplete or the processing is flawed, he will lose money, having to pay more than spot-market price. That is skin in the game. As more forward contracts are entered into, the buyer will see that supply is trending toward glut. The prices on forward contracts will decrease, prompting growers to consider other crops. 

Supply will be aligned with demand, with no coercion of the grower. Risk is managed by those best equipped to handle it. Additional elements such as insurance and futures exchanges will be needed for optimal results. Forward contracts have other benefits. They can be used as collateral for agricultural credit, allowing the phasing out of the present informal and dysfunctional credit mechanisms. 

Our efforts to interest private investors in establishing the necessary market solutions failed to take off several years ago due to concerns about contract enforceability in Sri Lanka, among other reasons. Government interference in the functioning of India’s incipient agricultural commodities futures exchange at that time may also have contributed. 

Information gaps

Another reason may have been the undeveloped nature of market information systems. Our research showed massive information gaps in the markets for agricultural produce. We found that sustainably filling these gaps with data on what was being cultivated when and on quality and market prices to be challenging in the absence of information-hungry futures and forward traders.

Crop (what is grown, when, how much), harvest and price data are needed for the market approach. Information on forward contracts being signed is also needed in real-time. Those selling such contracts need to know what farmers are planning to grow, while there is still a chance their behaviour can be nudged by incentives. 

One reason the existing data are of uneven quality is the absence of proper planning mechanisms or functioning forward contracts and futures exchanges. Because of the lack of consistent demand for data, sustainable data collection and analysis systems do not exist. Difficulties of capturing the returns of investment in data products caused piecemeal private efforts such as those that LIRNEasia was associated with being bundled into other products. 

Whichever path we take to build robust food supply chains, the data gaps and contract-enforcement problems need to be addressed. These are the productive interventions that will ensure food security; not the repetition of efforts to build a command model. 

Rohan Samarajiva is founding Chair of LIRNEasia, an ICT policy and regulation think tank active across emerging Asia and the Pacific. He was CEO from 2004 to 2012. He is also an advisor to the Advocata Institute.

Food security and self sufficiency

Originally appeared on The Daily FT

By Prof. Rohan Samarajiva

Food supply chains are strained or broken, domestically as well as internationally. It is natural and necessary in such circumstances to think about food security. But it is important to think intelligently and in ways informed by evidence.

All rankings and indexes have flaws, either in the data that form their basis or in their design. But they provide a useful starting point for an evidence-based discussion. The Global Food Security Index comprises three components: affordability, availability, and quality and safety. A new component on natural resources and resilience was added in 2019. 

The fact that Singapore, a city-state with over 5 million people and no access to farmland and therefore to locally grown produce, is ranked first in the baseline index signals that this index is based on an approach to food security that goes beyond common sense. Singapore drops 11 places when natural resources and resiliency are accounted for. It is vulnerable to sea level rises, ocean eutrophication and food import dependency. But even in 11th place, it performs better than all South Asian countries.

I have been studying critical infrastructures for more than twenty years. Sri Lanka’s accession to the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations and preparations for the Y2K problem were the immediate reasons. We have also been studying agricultural supply chains for over a decade.

Resilience-cost trade-off

There is always a trade-off between resilience and cost. If cost is of no concern, one can have extraordinary resilience, with 100% redundant facilities further backed up. Sometimes when the stakes are very high and the environment highly risky, one does have multiple back-ups. For example, in the worst days of the war when the LTTE was attacking Colombo and CEB engineers were striking at the drop of a hat, I was told about battery backup for mobile base stations, that were further backed up by diesel generators. But all this costs money.

It is the same with food security. One may believe that relying on locally produced potatoes reduces risks. But it is well known that the local production costs of potatoes are significantly higher than that of imported potatoes. Domestic producers are kept afloat by slapping special commodity levies on imported potatoes. What this means is that domestic consumers are paying more for inefficiently produced local potatoes and paying indirect taxes to the government for the imported potatoes they consume. 

Protectionist duties add up, making food more expensive for all. As a result, the cost of labour is higher in Sri Lanka. Therefore, many industries that must compete globally are hobbled by high labour costs.

Sourcing from inefficient domestic producers does not necessarily reduce risk. Agriculture is inherently risky. Floods, drought, insects, and disease can devastate crops. Truly resilient supply chains would not rely on a single area (such as Welimada for potatoes), or even a single country. In the same way that one would not be totally dependent on, say, Viet Nam, for all the rice the country needs, it may not be a good idea to think of self-sufficiency in rice as an absolute policy objective. 

In the face of COVID-19 and disruptions in global supply chains, Viet Nam has imposed some limits on rice exports which would give legitimate cause for concern among its customers. But on the other hand, relying totally on local production is also risky, as was seen in 2016-17 when drought reduced production to 1,474 MT from 2,903 MT in 2015-16. 

So, the real answer for food security is not the simplistic striving for self-sufficiency, but the balancing of cost and risk management through diversifying sources and ensuring that supply chains are robust. Preventing the emergence of monopolies that control choke points is an important part of the response. It is these complex trade-offs and balances that the Global Food Security Index attempts to capture through the weighted combination of 34 different indicators.

Sri Lanka’s food security assessed 

Sri Lanka was ranked 66th out of 113 countries in 2019. It was scored high in nutritional standards, change in average food costs, the proportion of population under global poverty line, food safety, food loss, urban absorption capacity, the volatility of agricultural production, and access to financing for farmers. Its score was pulled down by factors such as public expenditure on agricultural R&D, per capita GDP based on purchasing power parity, protein quality and political stability (biggest decline between 2018 and 2019). 

Sri Lanka’s overall score was slightly below the average, and quite a bit lower on quality and safety. It was ahead of its peers in South Asia, but behind peers such as Indonesia and the Philippines in South East Asia. India was ranked 72nd, with Pakistan (78th) and Nepal (79th) even lower. As usual, Sri Lanka was not too bad but could be much better.

When the natural resources and resiliency is added to the mix, Sri Lanka falls back one place to 67th out of 113. The impact of resilience associated factors is greater in some countries. For example, Australia and New Zealand show wide swings. Australia, which is 12th in the baseline index, drops to 16th place when natural resources and resilience are factored in, whereas New Zealand overtakes Australia by advancing five places to 14th place.

Resilience that is sensitive to cost

The response to COVID-19 and the resultant damage caused to food supply chains calls for a thorough re-examination of the entire agricultural system. The fragility of the current system has been laid bare. But the response should be nuanced and based on a sober consideration of evidence, giving due regard to the need for value for money in food. Instead of prohibiting imports and imposing taxes on consumers to protect inefficient producers, the state should ensure that supply chains are resilient because they are diversified both domestically and internationally. The best way to do this is by preventing the monopolisation of links in supply chains. 

Simplistic retreat to slogans such as self-sufficiency will not suffice. Sri Lanka has experience with those policies from the 1970s. Then they gave rise to black markets for the affluent and malnutrition for the poor. What was implemented in a much simpler time cannot be made to work in today’s more complex economy where consumer preferences cannot be satisfied by ration shops. 

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.

Curtailing liberty

Originally appeared on The Daily FT

By Prof. Rohan Samarajiva

Imagine a day in the life of a daily wage earner, before COVID-19. Of a woman who makes her living by providing cleaning services to several houses in Colombo.

She was free to take public transport, and on occasion a three-wheeler to get to work. She was free to take up or decline work and negotiate rates and days. She was free to keep cash, put some money in a bank and withdraw when needed. She could choose the vendors from whom she purchased groceries and other items.

It was no walk in the park. The work was hard, the madams were not always nice, the buses crowded… But she was able to feed her family and live her life. She could make small donations and participate in a seettu. She was not dependent on handouts or charity. She had liberty.

Now imagine her post-COVID-19 life. The money has run out, the jewellery is in the pawnshop. She cannot work, she cannot earn. April is burning hot, and her family is cooped up in a tiny tenement. Even when she has money, she cannot choose: she must buy whatever is offered at whatever price by whoever comes down the lane. She has to rely on handouts from the Government and from others. It used to be like this after the floods, but then one knew the water would recede and normalcy would return.

The curfew was supposed to be just for the weekend when first imposed. Now it has been over a month. Dates are announced and then changed for reasons unexplained. No one knows when this will end. Will she be welcome in the houses she used to clean? Will they fear her as a carrier of the disease and do their own cleaning? Will there be other work? She sees the streets are still being swept. Who should she talk to, how much is the bribe?

This is what the loss of liberty is for daily wage earners, for those whose work requires co-presence, those most affected by the curfew. The freedom to earn a living, to traverse public thoroughfares, to choose from whom to buy and what, to have some peace with the children out playing. All taken away by distant politicians and officials whose earnings are certain, who have no worries about food on the table when they are driven home by a chauffeur after a drink at the Hilton with a friend.

Let us concede that the lockdown (or its more severe version, the curfew) was needed to prevent the health system from being overwhelmed.

To save the lives of the elderly and those with weakened immunity. To buy time to get the tests and the acute-care beds and the PPE [personal protective equipment] organised.

The curfew was State action with significant positive externalities for society. Everyone benefited, including the daily wagers and the politicians. But the costs were not borne evenly. Those with the curfew passes and the Government vehicles may have borne none. Those among them who exercised discretionary authority may have even benefited.

The child who could not celebrate a birthday bore some of the costs. The executive who could not maintain the jet-black head of hair did too. But their costs were nothing compared to the daily wager cooped up in a tiny tenement without money to buy food and no certainty about what next week and next month would bring.

Giving these people money is not charity. It is compensation for the harm done to them by the State that dwarfed the benefits they received. It has been common practice to provide compensation when the State takes away assets or livelihoods. That is what has been done by the curfew.

When the State acts in ways that result in life-changing impacts on citizens (the curfew in this instance, but could also be allowing infected individuals to clear the airport), there must be accountability. There must be evidence that decisions were taken on the best available information and with best efforts made to minimise harms to citizens.

For this, two things are needed. The decisions must be taken under some written law and must be documented. There must be independent entities such as the Courts and the Legislature in place to examine the way the decisions were taken and with the power to hold the Executive to account. Do these conditions exist now?

The Acting IGP makes all sorts of announcements and arrests are made. But what laws are being broken by persons using public roads? What laws made by our elected representatives require shops to be closed?

Who decides what is essential and what is not? On what basis? Where are the emergency regulations? There can be no emergency regulations when an emergency has not been declared. There is no Parliament where questions can be raised, and the Courts are not fully functional.

A week of improvisation can be understood and forgiven. But now it’s more than a month. It is time to abide by the Constitution that all elected officials have solemnly committed to uphold. Perhaps we should consider requiring the unelected decision-makers to also take an oath of office, so they are reminded we live under 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.

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.

Other people’s money: Lessons from the Airbus corruption case

Published in the Daily FT

By Prof. Rohan Samarajiva

An insightful writer I follow had written that the corruption revealed in the Airbus case, technically described as a deferred prosecution agreement, is intrinsic to capitalism or to the market system. The implication is that it may not be intrinsic to not-capitalism, usually described as socialism. But all one has to do is to read Kautilya’s Arthashasthra, from 321-298 BC, to understand that corruption transcends the market system.

Big purchases, big bribes

Within our memory, major aircraft purchases were made by the National Carrier of Sri Lanka on three occasions. The first was during the Premadasa presidency, when much was made over the pricing of Airbus aircraft procured for the National Carrier and the interest rates of the financing arrangements. 

Then Emirates made major purchases as part owners and managers, both before the 2001 airport attack that destroyed half the fleet. No controversy ensued. 

The third instance was in the waning days of the Mahinda Rajapaksa presidency, when contracts for multiple Airbus aircraft and a VIP kit were entered into. There was no controversy at the time, but questions were raised after 2015 when large penalties in excess of Rs. 17 billion had to be paid for not completing the purchases. The real controversy has erupted only now with admissions of specific acts of bribery by Airbus. 

Though the European court documents did not name the recipients of the bribes, the Attorney General sought the arrest of Kapila Chandrasena, the CEO at the time, and his wife. 

In a related development not much discussed in Sri Lanka, the private Malaysia-based budget carrier Air Asia announced that its Chief Executive Tony Fernandes and Executive Chairman Kamarudin Meranun would leave their positions immediately until investigations were completed on an Airbus sponsorship worth $ 50 million for a sports team owned by them. The Air Asia contracts were larger than SriLankan’s and so were the associated payments from Airbus.

Principal-agent problem

In both cases, executives (agents) entrusted with managing airlines on behalf of the owners (principals), the Sri Lankan State in one case and private shareholders in the other, are alleged to have acted to the detriment of the principals, for personal gain. This is a manifestation of the principal-agent problem. Agents always have more information than the principals and their interests are different from those of the principals. How to ensure agents act in the interests of the principals is the problem. 

The executives entrusted with prudent management of other people’s money are alleged to have breached that trust by not getting the best possible deal from Airbus. Airbus may have transferred the bribes, but the actual payers were the owners of SriLankan and of Air Asia. If not for the bribes, the airline owners would have obtained greater value for money from Airbus or its competitor.

Why did these actions occur? One must begin from the larger context of market structure.

Assume a workably competitive market with privately-owned firms. Here, if executives pay inflated prices or accept lower quality, their firm will be disadvantaged. The firm will lose market share and/or profits will be eroded by the higher costs. The owners will not keep pumping in capital because of they have hard-budget constraints. They will fire the executives and/or wind up the firm. Air Asia has chosen the former path even though Tony Fernandes was the visionary founder. 

In privately-owned firms, bribe-induced non-optimal procurements will be rare because the principals have strong incentives to set in place mechanisms to minimise bad behaviour by agents. One could ask why it took so long for the Air Asia board to act on Fernandes and Meranun. The explanation must lie in the complexity of the airline business which exacerbated the information asymmetry and allowed the agents to mask their less-than-optimal purchasing decisions. The principals suffered the consequences, earning lower returns than they would have if proper controls were in place.

In SriLankan Airlines the true owners have no seat on its Board. They are the citizens of Sri Lanka, who have designated certain politicians as their agents. At one time, these politicians decided to operate a State-owned airline. Other politicians at various times appointed persons to the Board of the airline as their agents to efficiently manage it. These agents serve as the principals to the executives who actually manage the airline. So, it’s not a simple principal-agent relationship but a concatenated series of such relationships, ending in a principal who is incapable of exercising effective supervision. 

If the airline loses money, the Board members are not affected because the money at risk is not theirs. The politicians also do not have own funds at risk. The politicians, their agents the Board, and the Board’s agents the senior managers, all take decisions that affect other people’s money. Intrinsically, there will be fewer incentives to set up effective controls. The general public, whose is money is being mismanaged, are not part of the decision making. Their only recourse is voting out the politicians at the next election. But elections are not decided on single issues.

In the effort to find a third way between State ownership which was failing and markets which they were opposed to ideologically, the socialist rulers of the former Yugoslavia claimed that it would impose hard-budget constraints on State-Owned Enterprises (SOEs). 

In fact, the constraints were never hard. There were always reasons for exceptions: national security, welfare of consumers, avoidance of unrest that could be caused by layoffs, etc. All these reasons and more have been heard in the case of the endless infusions of public funds into SriLankan, the latest being the need to have the ability to evacuate citizens from foreign lands. 

What can be done?

The first-best solution is to avoid the use of taxpayer funds in firms such as airlines that operate in competitive markets. In other words, they should be privatised. These businesses are complex. If they are not operated efficiently, the risks of losing money are high, as evidenced by the demise of private airlines all over the world. 

The information asymmetries that must be managed to ensure effective control of agents are difficult enough even for private owners. But they have incentives to work at it because their money is at risk. When public funds are being used no such incentives exist. If owners fail to control their agents as was the case with fully private Air Asia, they suffer the consequences in the form of foregone profits and lower share prices. Their losses are of no concern to the public. 

Partial private ownership is a second-best option. There was no fuss when Emirates management bought aircraft for SriLankan. Some public funds were at risk but Emirates which owned 43% of the airline was the decision maker. If the CEO bought aircraft in return for bribes paid to his wife’s company, Emirates would lose money along with Treasury. It had incentives to create good controls. The proof was in the dividends paid to Treasury during the period of partial ownership and management by Emirates.

The last-best solution is continued State ownership. If this option is adopted, one would have to rely on procedures, not on self-interest. Honest, diligent individuals would have to be found as managers and as Board members. They would appoint tender board and technical evaluation committees that follow strict procurement rules designed to ensure financial probity. Just to ensure that all these actors were indeed honest and diligent, oversight bodies would be empowered. Parliamentary committees would exercise oversight of everything. 

Described above is how Government agencies are supposed to operate. Government procurement rules when implemented properly do work. But they are slow and cumbersome. They are unlikely to be optimal for the nimble operations needed in complex competitive businesses such the airline business. The money that is not lost to pilfering CEOs may be lost simply by the inability to meet the requirements of a competitive business. Air India’s accumulated losses in the past decade amounted to $ 9,730 million, despite there not yet being any evidence of bribes paid by Airbus.

The best course of action is to align the incentives of owners so that proper controls are implemented. That requires privatisation, complete or partial. It is simply not possible to run a fully State-owned airline in the competitive era without burdening the public.  

On social media, Sri Lanka should consider aligning its actions with the Christchurch Call

Originally published in Daily FT

By Prof. Rohan Samarajiva

Since the tragic terrorist incidents and pogroms of April and May, concerns about social media have been reverberating throughout our society. We are under pressure to “do something,” even without fully understanding the problems we seek to solve and the viable solutions.

Understanding social media 

The term “social media” is not the most illuminating. Facebook differs from Twitter and both are very different from TikTok. All these are platforms (that allow for users and producers to connect) and all depend on user-generated content: content generated by millions of users with no chokepoints conducive to regulation (otherwise known as editors, producers and media owners). But beyond that, the affordances of each are very different. 

There were 2.4 billion active users on Facebook by 2019 Q2, but none of the millions of content producers can gain the attention of all 2.4 billion people. Attention is a finite, valuable resource and the design of the platform requires work to be done to gain attention. Some fail, while others reach audiences in the lakhs and millions. 

How does one attract attention? Humans are genetically programmed to pay attention to signs of danger and opportunities of procreation. So in general, those who seek to assemble large and engaged audiences tend to emphasise attention-gaining content that leverage violence and titillation. Those who seek to maximise audiences for political purposes tend to purvey polarising content based on fear. Mainstream media do this too, but the new platforms do it better, mobilising the ingenuity of the crowd and data.

Selling aggregated attention to advertisers is how platform companies dealing in content make money. So their algorithms and design are optimised for attention gaining and holding.

What bad guys do

Yuval Noah Harari likens terrorists to a fly that wishes to destroy a china shop. The fly cannot budge even a single cup. Instead it gets inside the ear of a nearby bull and starts buzzing. The bull goes wild with fear and anger and destroys the china shop. What role is played by media in the buzzing? 

After the coordinated bomb attacks on 21 April (the enraging of the bull), social media is seen as having played a role in the enraging of the bull which took the form of pogroms against Muslim citizens. Some have claimed that the three blockages of social media by the telecom regulator on orders of the President were necessary to prevent violence, which does not fully explain what happened in the North Western Province and the Gampaha District on 13 May and the resulting harm to our multi-ethnic society (the damage to the china shop). 

But first, terrorists (the fly) have to recruit and raise money. Zahran used YouTube to recruit, and Facebook to draw attention to the video clips. The terrorists used Threema, an encrypted messaging service, to coordinate their activities. It was also reported that important discussions occurred face-to-face, including at a wedding on the east coast attended by the Colombo murderers, and after Friday prayers in a BMW car belonging to the financiers.

Complaints had been made prior to the attack about the Facebook pages and YouTube videos. In some cases, the authorities had declined to takedown pages so they could continue to gather 

information.

What can we do? 

Would the events of 13 May have happened if not for social media? As shown by the Divaina newspaper in the case of Dr. Shafi Shihabdeen, mainstream media, though in decline, can still aggravate the rage of the bull and cause significant damage. When some Facebook groups are larger than the circulation of most newspapers, one cannot ignore the potential of social media to amplify violence-inciting messages.

Many who want something done about social media disregard the culpability of the old ways of transmitting hate. The enraging of the bull by the LTTE’s killing 13 soldiers in the north in 1983 caused immense and lasting damage to Sri Lanka. No social media or mobile phones existed at that time. 

So it is necessary to ensure that all laws criminalising incitement to violence are technology neutral. And even more importantly, that cases against those violating such laws are expeditiously concluded and that punishments are well publicised. Exemplary punishment is what will deter future hate speech, not the length of prison sentences in unenforced penal provisions.

Laws cannot solve all problems.

What is the objective: is it to punish miscreants or is it to prevent conflagration? If the latter, the solution must give priority to prompt takedown of the incendiary content. That means steering clear of state action under law.

In all law-governed countries, penal actions are preceded by some form of legal and quasi-judicial proceeding wherein the state presents an indictment; the affected party is given an opportunity to defend him or herself; and an “unbiased” authority makes a decision. As a result, state action resulting in a takedown or other punishment will necessarily take a few weeks at least. By that time, the damage will have been done.

Thus, the best way to avoid violence resulting from terror attacks is cooperation with non-state parties who can takedown offensive content promptly based on community standards that are part of the terms of service. This requires continuing dialogue between state authorities and platform companies, with the participation of civil society groups who can assist in shaping appropriate community standards that can be applied by platform companies.

Preventing the recurrence of attacks such as those on 21 April is even more complex. As Muslim organisations which complained against the hate speech of Zahran were told, investigators sometimes need the content to be kept up in order to identify potential terrorists and to unravel their networks. These trade-offs are best made by those engaged in investigating terrorism and extremism, rather than dealt with through legislation. Of course, actions such the takedown of violent videos by YouTube and the tweaking of its recommendation algorithms must be continued.

The Christchurch Call, an initiative led by the Governments of France and New Zealand, which has been joined by countries such as India and Indonesia as well as by the major platform companies such as Facebook and Google, presents a law-governed framework for acting on social media that preserves core democratic values including the freedom of speech. Sri Lanka should seriously consider aligning its actions with the Christchurch Call, rather than hurriedly “doing something” that could do more harm than good.

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Rohan Samarajiva is founding Chair of LIRNEasia, an ICT policy and regulation think tank active across emerging Asia and the Pacific. He was CEO from 2004 to 2012. He is also an advisor to the Advocata Institute.