SL: CBK:GROSS MALPRACTICE AND CHEATING OF PEOPLE!?!

A FUND TO HELP CBK? PREPOSTEROUS!
by Dhammica Lankatilleke

CBK has been accused of gross malpractice and of cheating the people of this country; she has shown utter contempt by not issuing any statement on the allegations. Perhaps she has nothing to say for they are true.

We, the people, waited for the president to appoint a Commission to inquire into the charges listed against her by CIMOGG (Citizens Movement for Good Governance) but for reasons best known to him he did not do so. It was left to a civic minded citizen to go the court on behalf of the people at least in one case. We are grateful to the Supreme Court for its ruling which is a warning to all presidents that they are not above the LAW If a former Indian prime minister could have been taken into custody, surely we can do one better and let the rule of law prevail. There are nine other allegations against the former president which needs to be inquired into in her own interest.

The Organization of Professional Associations and CIMOGG initiated the demand and listed the instances of alleged misdemeanors; many citizens have written to the newspapers supporting the demand but the President has till now done nothing about it.


The CCMOGG and its mercurial Dr Visvalingam stated that they wished to see the doubts regarding the following matters cleared up;


1) Tawakkal take over of Puttalam cement

2) Air Lanka take over by Emirates

3) Shell gas monopoly

4) Waters Edge transaction

5) Rubber Block factory affair

6) Alleged purchase of second hand vehicles at new car prices

7) Giving Admiral Sandagiri an unprecedented three year extension after the age of retirement, considering that there had been serious allegations being made against him in respect of improper arms purchases.

8) The French locomotive tender – when we purchased ships engines for locomotives

9) Irregularities in the administration of the President’s Fund.


A few more misdemeanors have been revealed recently by Victor Ivan in his book the Bandit Queen. The fact that he has not been sued speaks for itself.

We the people are sick and tired of the corruption that has assumed the proportions of a virulent corrosive cancer and is destroying this country.

President Rajapakse had promised to wipe out corruption in his ‘Mahinda Chintanaya’, we do not think corruption can be wholly wiped out but he should deal with the problem in a meaningful manner; we now expect him to live up to his promise and deliver. Whether they be Presidents, Ministers or Admirals it does not matter. The bigger the fish the better; the President would not only earn the admiration of the entire country but also of the world community for cracking down on corruption. The President would no doubt be accused tolerating corruption and protecting the corrupt by default if he does not act.

The President by not appointing a Commission is now causing us the citizens to go to the Supreme Court to secure the Public Interest. The President must act or he would lose the trust of the people. It would indeed be a shame if their confidence in him is eroded as a result of protecting the corrupt.
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After Waters Edge, What Next?...............by Harindra Dunuwille

The landmark decision of the Supreme Court in the Fundamental Rights case filed by two concerned and public spirited citizens has stirred a nation that has almost resigned to its fate of seeing successive governments and its leaders govern her with scant regard for accountability and transparency.

This judgement is one of a series of decisions handed down by the Supreme Court since 1993 in the domain of the Doctrine of Public Trust and the Rule of Law.

The ancient Roman Empire developed a legal theory known as the "Doctrine of the Public Trust". This Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. Under the Roman Law these resources were either owned by no one or by every one in common. This principle became the law in England and later a part of the common law of the United States of America in the late 19th centuary.

It's a timely reminder that the doctrine enjoins the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Three types of restrictions on governmental authority are imposed by the public trust: first, the property subject to the trust must not on used for a public purpose but it must be held available for use by the general public; second, the property may not be sold, even for a fair price; and third, the property must be maintained for particular types of uses.

To protect, preserve and improve environment for the benefit of the community is a directive Principle of State policy and a Fundamental Duty according to Article 27 (14) in our Constitution. Thus, the State is not the owner of the natural resources in the country but a trustee who holds a fiduciary relationship with the people.

Through similar landmark judgments, the Indian Courts too have adopted the Doctrine of Public Trust as part of the law of that land. Our Superior Court have undoubdetly been encouraged by judgements in Public Interest actions that have have come out of neighbouring India. In recent times the scope for Public Interest actions has been greatly encouraged by our Supreme Court and in doing so it has afforded an opportunity for civic minded citizens to challenge the . infringement or imminent infringement of Executive and Administrative actions. I dare say the this judgment had expanded and advanced the jurisdiction of the Supreme Court to enforce fundamental rights as the most important remedy against injustice in the discretionary power of the state sector.

There is much to be taken out of this Water's Edge judgment, where the Supreme Court held, inter alia, that:

1. The immunity conferred by Article 35 upon the President is neither absolute nor perpetual but only prohibits the institution or continuance of legal proceedings while he/she is in office.

2. No single position or office created by the Constitution has unlimited power and the Constitution itself circumscribes the scope and ambit of such power which would even include the power vested with the President who sits as the Head of the country.

3. The principle that those charged with upholding the Constitution are to to do so in a way that does not violate the Doctrine of Public Trust by state action/inaction is a basic tennant of the Constitution which upholds the legitimacy of the Government and the Sovereignty of the People.

4 Power held by organs of Government are in fact, powers that originate with the People and are entrusted to the Legislature, the Executive and the Judiciary.

5 Powers exercised contrary to the Public Trust DocIdne would be an abuse of such power and in contravention of the Rule of Law.

6 Any one of the people of Sri Lanka may seek redress in instances where violation is believed to have occurred.

7 Persons without Executive status guilty of opriety or connivance with the Executive in a wrongful act of a violation Of a fundamental right are liable to be punished.

The former President and her crony Ronnie Peiris have been asked to make "a token payment of the real loss to the state of several hundreds Of millions (so that it) will serve to remind present and future state actors and agencies (i) of their paramount duty to further the Public Trust and (ii) that their actions are subject to the Rule of Law". The judgenent direects the Conunission to Investigate Allegations of Bribary or Corruption to conduct an immediate inquiry of the entire transaction with particular scrutin the actions of, among others, the Urban Development Authority and the Board of Investment.

From a reading of the judgement it very clear that both these public authorities have failed to act and discharge their duties and obligations have and have allowed themselves to be manupilated to the extent of completely abdicating their responsibilities as set out in the respective Acts of Parlament establishing those institutions. It must therefore follow that the Heads of these authorities and the Principal officers who were remiss in their duty would be investigated and prosecuted under the Bribery Aci, which new includes the offence of corruption as well.

The judgement observes that 'a notion that they were compelled to cooperate and facilitate the project.......... by other individuals and .entities', cannot absolve the two authorities from responsibility for the recommendations and decisions they have made.

This brings up the question of who these "other individuals and entities" are?

In a highly politicised state such as ours. Public Officials have been redued to mere passangers or 'on lookers' whilst the majority and the more ambitious types have become sycophants of their political masters. They together with political appointees do the bidding of these masters without question, be it right or wrong. Rules and Regulations are clay in their hands. The backbone of the public service has been broken. It is sad to see what was once a proud, dignified, independent and respected service, being dragged down to the pathetic state it is in today.

Whilst the politician is lagely to blame for this state of affairs, the members of Sri Lanka Administrative Service have over the years allowed themselves to he pushed into a corner. Let's hope that with this judegment at least, they will feel the heat of what might be coming and make an united stand to re assert themselves. The Association of Sri Laka Administrative Service Officers would do well to take a leaf from some of the other similar professional unions and act and stand together in the best interest of all.

Three Ministers have been named in the judgement, all of whom along with the former President in her capacity of Minister of Finance have submitted Cabinet Memoranda in this so did transaction. It is important to ask why at least two of these Ministers unquestioningly did the bidding of the former President whose personal interest has been dealt with comprehensively in the judgement; Why no other Minister questioned these papers in Cabinet. Very obviously, it is because they and all the Ministers just want to keep their jobs and all the power, perks and previlages that go with that office. Thus, we have a situation where the Executive comprising the public servants are rendered blind, deaf and dumb and the Ministers are silenced by profit and vanity on the one hand and an authoritarian Party leadership which shakles its members in and out of Parliament. Sadly, there is no one in Government to raise above self gain and self preservation to apply the brakes in instances such as in Water's Edge..

The record of the Bribery Commission in going after heavyweights specially political biguigs, is very poor. The mishandled assets cases of two former Ministers comes to mind. Two Officers of the Commission investigating the assets of a present Minister, have been suddenly transferred, one to a bunker in Mannar and the other into cold storage at Police HQ allegedly at the instance of one of the Commissioners. These are matters stated by the two Officers concerned in their applications now before the Supreme Court. The Commission has not taken any initiatives, despite a formal complaint made to it, on the report of the Parliamentary Committee on Public Enterprises but left it to interestd citizens to take up one or two of the twenty odd instances highlighted in the COPE report.

It also true that the state has not given the Commission the required man power and resources.. In addition its Director General was suddenly transferred out by a Presidential directive early this year. There is a serious a lack of political will to support and encourage its work. All of this casts doubts on the independence and effectiveness of this Commission.

It is therefore left to public spirited ordinary citizens to "blow the whistle" and take instances of abuse and misuse of power and the plunder of public assets to the last repository of confidence the Supreme Court.
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