Choices: Work with the Disaster Act or fix its flaws?

July 25, 2006 (LBO) – The 2004 tsunami was a shock. One out of 500 Sri Lankans died in the short space of three and a half hours when walls of water hit them without even one minute of official warning. We all agreed then that things could not go on the way they had.

So our political leaders passed a law and created another government organization. That organization has now published a road map with the assistance of the UNDP.

The road map is being implemented.

Action is being taken by people of goodwill.

The question is whether the action will yield the desired results.

The question is whether our people will have a few more minutes of warning and a little more knowledge on how to save their lives and those of their loved ones the next time.

The inclusion of the President as Chairman of the Council is intended to signify the importance given to the subject; but why also the Prime Minister?

If the President is the Chairman, what is the role of the Minister in charge of the subject?

If a disaster is mismanaged, who is responsible?

In any case, does it make sense for the Executive President of the country to be involved in the minutia that the Council has been tasked with

The law, the Sri Lanka Disaster Management Act, No. 13 of 2005, will be implemented by the Disaster Management Centre.

It may work; we have to hope that it will.

The efficacy of the actions being taken depends on the quality of its leadership, the intelligence and commitment of its people, the willingness of the political leaders to let it do its job and the consistency of its course.

It depends on too many factors outside the flawed legislative design.

Fix the flaws or do the best we can?

In 1997, when I returned to Sri Lanka to serve as Director General of Telecommunications, I was told that the legislation, dating from 1991 but amended in 1996, was fundamentally flawed.

I knew this from research I myself had done, but I chose not to spend any energy on those flaws.

My priority was getting something done.

Regulation is implementation, not policy making nor law making.

With the heroic efforts of many, we did get some things done.

I do not regret the choice that I made to give priority to implementation over legislative reform.

But looking back, I regret not placing those flaws on the agenda, at least.

But in addition to the implementation actions that we undertook, I should have initiated the process of fixing the flawed legislative design.

Events since have demonstrated the magnitude of the flaws of design of the Telecom Regulatory Commission.

People of goodwill have been unable to deliver the goods; the sector and the public have suffered; the Sri Lankan telecom sector which was once the best performer in the region is close to be overtaken by Pakistan.

I believe that error should not be repeated.

Let the good work that is underway on disaster management continue unabated. But let us also avoid the recurrence of what happened with the regulatory commission.

Governance matters

The key decision making body on disaster risk management in Sri Lanka, according to the Act, is the National Council for Disaster Management.

The President chairs the Council.

It includes the Prime Minister and the Leader of the Opposition as well as 20 Ministers of the Central Government, every Provincial Chief Minister, five opposition MPs, the Secretary of the Council and other ministers who the Council may co-opt.

Its minimum size is 37.

It must meet at least once in three months.

The inclusion of the Provincial governments and the representation provided to the Opposition are praiseworthy.

But the overall design is top heavy and inimical to intelligent decision making and to accountability.

The inclusion of the President as Chairman of the Council is intended to signify the importance given to the subject; but why also the Prime Minister?

If the President is the Chairman, what is the role of the Minister in charge of the subject?

If a disaster is mismanaged, who is responsible?

In any case, does it make sense for the Executive President of the country to be involved in the minutia that the Council has been tasked with (described below)?

Why 20 Ministers (in a normal country, this would be the size of the entire Cabinet)?

Is not the totality of the economy and society affected by disasters?

Why then attempt to “represent” certain sectors and not others? Foreign affairs are included but not tourism.

Why? And as is to be expected in the surreality of Sri Lankan cabinet formation, the Minister of Disaster Management is not specified in the Act; he has to be co-opted by the Council!

The Council will at best be a coordination mechanism to manage the cross-cutting nature of disaster risk management; at worst, it will be a rubber stamp.

That suggests that the real action will be at the level of the Disaster Management Centre and the Director General who heads it, both created by the 2005 statute.

The Center’s functions are specified by the Act.

But it is clear that it is a subordinate entity.

It is not a body corporate that can sue and be sued; it has no fund. All these attributes are reserved for the Council.

The number of directors is not specified.

The appointment of the Director General and the directors is to be by the Council in consultation with “the Minister.” It is common legislative drafting practice to specify the identity of the Minister in the Interpretation section, but no such definition is found in this Act.

The Director General’s qualifications are nowhere defined.

The term of the Director General is not specified; neither are the procedures for removal.

It may therefore be imputed that he/she serves “at pleasure.”

Senior officials who served at pleasure were governed by the general rules and procedures of the administrative service, but this position is completely at the mercy of the Council.

Does the Director General belong to the Council that appoints him/her? Can he/she participate in the meetings of the Council? What is the relation between the Director General and the only non-elected member of the Council, the Secretary?

How many times has the Council met since the Act came into force? Has the once-in-three-months rule been adhered to? How has attendance been?

The Director General has no specified powers or functions other than “heading” the Center.

He/she does not even have appointment and disciplinary authority over the “officers, servants and agents” of the Center.

That authority also rests with the Council, suggesting that even the appointment of a consultant would have to be made by the Council.

Not having any defined powers, duties or functions, it is unlikely that the Director General can be held accountable for any failures of disaster management.

Finance matters

The Council has its own fund, and is not dependent on the Consolidated Fund (but also cannot draw from it).

The only contribution that is envisaged from the Consolidated Fund is the initial capital of LKR 10 million (approximately USD 100,000), a token amount inadequate even to pay the annual salaries of a modest organization.

In relation to the LKR 3 billion that is budgeted just for the short-term actions identified by the Road Map, the initial allocation (0.003 percent) is positively frightening.

The LKR 3 billion is just for risk management actions to be taken within the first two years, namely in 2006 and 2007.

It does not include medium and long-term actions, nor does it include any funding for establishing the center, training the staff, etc.

Interestingly, the finance provisions make no reference to continuing funding from the Consolidated Fund.

It appears that the Council is seen as receiving payments in return for discharging its functions.

Unless this highly unusual fee-for-services model is implemented, the only source of revenue appears to be credit or charity: “all such sums of money as may be received by way of loans, donations, gifts or grants from any lawful source whatsoever, whether in or outside Sri Lanka.”

It seems that the Government hopes to conduct disaster risk management on other people’s money.

Unless this expectation is met by the commitment of stable funding by a foreign entity, it is difficult to see how the DMC can deliver the promised results.

Knowledge matters

The DMC must be applauded for publishing a detailed Road Map within five months of its establishment.

The Road Map lists the preparation of flood inundation maps for the downstream areas of major dams as part of the first “key intervention” under Component 2, “Hazard, Vulnerability and Risk Assessment.”

The dangers posed by cascaded dam systems are also given significant prominence by the Select Committee in its report.

Therefore, it would be reasonable to expect that the funding priorities of the Road Map would reflect the importance of the hazard.

In an area such as disaster risk management where coordination and buy-in are of critical importance and where knowledge is unlikely to be perfect, consultation, including the solicitation of comments on a draft document is to be expected.

For example the recent consultations on the assignment of CDMA frequencies by the Telecom Regulatory Commission resulted in the avoidance of mistakes and smooth implementation.

However, it is possible that the DMC gave primacy to quick publication of the Road Map over consultation because it drew from the voluminous report produced by the Parliamentary Select Committee on Natural Disasters.

Even if its funding is uncertain and the powers of the implementing agency unspecified, the Road Map is a critical document in Sri Lanka’s disaster risk management.

Correctly, it identifies the importance of coordinating multiple government, community and NGO entities. However, the private sector is inexplicably absent from the picture.

For example, it was clear from the tsunami experience that the tourism sector is quite important to a comprehensive disaster risk management strategy. But the hotels and the even the Tourist Board and the Ministry are conspicuously absent from the Road Map.

Similarly, the discussion of the telecom sector is reflective of the government dominated past rather than the vibrant private-sector driven present.

There are approximately 3.4 million mobile phones in Sri Lanka, over three times the number of phones supplied by the privatized Sri Lanka Telecom (SLT).

The proper authority to ensure the optimal contribution of the telecom sector to disaster risk management is the Telecom Regulatory Commission (TRC), which was assigned specific disaster-related responsibilities by Cabinet in 1999 in addition to its broad statutory duties that include disaster preparedness and response.

Yet, the Road Map lists Sri Lanka Telecom, not the TRC, as a stakeholder.

The Road Map lists the preparation of flood inundation maps for the downstream areas of major dams as part of the first “key intervention” under Component 2, “Hazard, Vulnerability and Risk Assessment.”

The dangers posed by cascaded dam systems are also given significant prominence by the Select Committee in its report.

Therefore, it would be reasonable to expect that the funding priorities of the Road Map would reflect the importance of the hazard.

The Road Map budgets LKR 20 million for preparing dam break inundation maps for 10 high-risk dams.

The maps for the remaining 340 medium and large dams and the 12,000 small dams are postponed to 3-5 years to the future.

No budget is allocated to early warning systems for dams in the short-term.

The above discussion is not intended to be a comprehensive assessment of the Road Map; but is simply illustrative of the shortcomings of the knowledge base underlying the Road Map.

It appears best to treat the published document as a consultation paper; translate it into Sinhala and Tamil (or at least the operational matrices); publish the paper and the translations on the web; and actively solicit comments through town meetings and otherwise.

If the DMC wishes, LIRNEasia and the Vanguard Foundation would be pleased to share their experience in conducting participatory public policy processes on disaster related subjects.

Of course, all this would require the DMC to implement Recommendation 4.4 of the Select Committee Report on the importance of strengthening the existing Disaster Risk Management website, which does not seem have been transferred to the DMC yet.

It is understandable that the Road Map, reflecting the baseline knowledge of an inchoate organization, falls short.

This shortcoming can be remedied.

The larger question is whether there is evidence that the DMC has a human resources plan that recognizes the central importance of consolidating existing knowledge and building on it.

While the Act does allow for appropriate compensation packages to be provided, the general tone of the Act suggests that most, if not all, of the staff will be drawn from other government organizations on temporary or permanent bases.

Is this likely to yield the kind of efficient, performance-driven, learning organization that is essential for effective disaster risk management?

Will we be ready the next time?

The sad answer is no.

The government has enacted framework legislation that falls short not only on basic criteria such as effective operation of a disaster authority, sustainable and stable funding and accountability, but even on clarity of drafting.

No attempt has been made in the design to insulate the authority from the weaknesses of existing government institutions, though the Act does succeed in insulating the authority from public funds.

The Road Map, reflecting an admirable commitment to action, is an excellent starting point for mapping priorities and achieving results.

But the realization of its potential depends on the strength of the human resources that can be mobilized by the DMC.

The proof of that will be the team that will be assembled and the actions they take in the coming months.

Based on my experience in trying to build an effective telecom regulatory authority based on a seriously flawed Act I would recommend that the founder Director General of the DMC continue on the present path of finalizing and implementing the Road Map but, in addition, initiate action to remedy the fundamental flaws in the legislative framework embodied in the Sri Lanka Disaster Management Act, No. 13 of 2005.