Judicial backbone

Photo: BILASH RAI

Even though all of Southasia is blighted by official corruption, over the years corruption has reached pandemic proportions in Sri Lanka, when multi-million-dollar scandals regularly rock the society and economy. The private-public nexus seems to constantly be plundered for individual benefit, even while the governmental checks and balances that are supposed to work against excess have been weakened. It is thus a matter of relief that, in recent months, the Sri Lankan judiciary has begun to show signs of strength.

That the situation has evolved in this way does not surprise Victor Ivan, the editor of the Colombo newspaper Ravaya. Ivan argues that the very foundation of the country’s political system is based on corruption. He particularly points an accusatory finger at Sri Lanka’s courts, which he says has been broken for a long time, the recent rulings notwithstanding. “The system of institutions, including the judiciary, also functions according to that inherent ideology … giving the necessary protection to the corrupt practices of the ruling party,” he says. “At the same time, implementation of the law against the corrupt practices of the opponents of the ruling party helps to give the government an anti-corruption appearance.” Indeed, many feel that Sri Lanka’s main corruption problem stems from the establishment of the executive presidency, in 1978. Since then, the power of this branch has steadily eclipsed that of the legislature as well as the judiciary, having increasingly manipulated these institutions for its own benefit.

Corruption, nepotism and collusion have remained unabated under the watch of the incumbent president. Throughout President Mahinda Rajapakse’s administration, his personal influence has been dramatically increased by the presence of close family members in key government positions. Indeed, along with his brothers – Gotabhaya (Defence Secretary), Chamal (Ports and Aviation Minister) and Basil (Presidential Advisor and Member of Parliament) – the Rajapakses would already have given new meaning to the idea of nepotism. Together, this coterie has a hand on roughly 80 percent of the country’s treasury funds. Yet according to the national weekend paper The Sunday Leader, the Rajapakse clan’s hold over governance goes significantly farther, with approximately 130 relatives also holding various public offices.

As with much else in Sri Lanka today, the ethnic conflict has also funded the corruption contagion. Over the past three decades, the war between the government and the LTTE has led to an eclipse of governance and a simultaneous increase in corruption. Governments tend to sweep into office, consolidate their power and then remain entrenched on the all-pervasive rhetoric of war. They use the war economy for financial gain. Lakshman Kiriella of the opposition United National Party has accused the current government of purchasing five MiG-29 fighter planes at the cost of approximately USD 80 million, despite Defence Ministry statements that such planes were not needed to confront the LTTE. “The government has flouted financial regulations in not calling for tenders,” Kiriella stated “and proposed that the company involved in the deal be brought before the Committee on Public Enterprise, or that a parliamentary committee be set up to oversee the tender process.”

The ongoing conflict has also been used as a pretext to hamper investigations into corruption. Starting in July 2008, serious allegations were levelled against the Ministry of Health and the National Blood Centre over the use of expired aphaeresis kits, used to harvest blood platelets from donors, purchased from two US companies. But instead of initiating an immediate investigation, the state-run media diverted attention from the issue, claiming that there was a conspiracy afoot to create a long-lasting blood shortage that would have an adverse effect on wounded soldiers in urgent need of blood transfusions. Finally, in October 2008, the Supreme Court of Sri Lanka allowed the Public Services Commission to proceed with investigations into the matter.

The right to information and freedom of the press, democratic society’s tools in combating state corruption, have been severely compromised in Sri Lanka over the years. According to the recent World Press Freedom Index, published by the media watchdog Reporters Sans Frontieres, Sri Lanka has fallen to the lowest press-freedom rating of any democratic country in the world. Outside of the state media, press freedoms have regularly been attacked through abductions, intimidation and murders, as well as through a general curtailment of freedoms of information and free speech. In particular, writers who specialise in scrutinising military affairs and related corruption, such as Keith Noyer and Iqbal Athas, are regularly singled out for threats, intimidation and torture, and the government-run media label dissenting voices as those of traitors who compromise and harm national security. Sri Lanka is perhaps the first country to indict a journalist under a Prevention of Terrorism Act, with J S Tissainayagam currently on trial defending allegations of supporting ‘terrorism’. With the assault on the media, there is little surprise that the media has been less than successful in playing an effective watchdog role.

Precedent?
There is no doubt that good governance and rule of law have suffered ‘collateral damage’ in Sri Lanka’s protracted war. However, two recent judgements delivered by the Supreme Court, which saw the indictments of a former president and several high-ranking public officials, have given the citizenry a modicum of hope. The first case concerned the sale, in 2002, of a 90 percent stake of Lanka Marine Services, a refuelling operation, by the state-run Ceylon Petroleum Corporation. The stake was sold for SLR 1.2 billion (around USD 12 million) to John Keells Holdings, Sri Lanka’s largest listed conglomerate, with the highest market capitalisation on the Colombo Stock Exchange. The petitioner in the case, Vasudeva Nanayakkara, was a presidential advisor and former politician. He alleged that the sale to John Keells Holdings was carried out without the necessary prior approval of the Cabinet of Ministers, and was biased and non-transparent. According to the petitioner, John Keels Holdings amended regulations to enter into a tax-exemption scheme with the Board of Investment.

The second case, which was allowed to proceed in November 2007, also alleged corrupt practices under the watch of former President Chandrika Kumaratunga. The petitioners, two former civil servants, held that two private corporations – Asia Pacific Golf Course and Access Holdings – in collusion with then-President Kumaratunga, utilised public land to serve as an exclusive private golf resort in Sri Lanka, with a membership fee of nearly USD 2300.

The judgements delivered in both cases referred to the importance of the rule of law, and the government’s duty to protect and uphold the doctrine of public trust. Chief Justice Sarath Nanda Silva delivered the judgement on the first case on 21 July 2008, holding that the rule of law is the basis of the Sri Lankan Constitution, and that it postulates the absolute supremacy of the law over the influence of arbitrary power. The judgement reiterated that state resources are the resources of the people, and that there exists an expectation that the executive branch will act in accordance with the law, and in the best interests of the people. In addition, Chief Justice Silva held that if the executive branch were to act ultra vires, it would be in the public’s interest to bring such matters before a court. As such, the Supreme Court found that the privatisation deal of Lanka Marine Services was illegal, and ordered the Secretary of the Finance Ministry to pay a landmark fine of SLR 500,000 (USD 5000).

In the second case, Supreme Court Justice Shiranee Tilakawardane delivered the judgement on 8 October 2008, and likewise invoked the principle of public trust. The court held that former President Kumaratunga had violated the fundamental rights of the public, and imposed a fine of SLR 3 million (USD 27,300) on Kumaratunga. The judgement held that the executive branch was indeed accountable to the people, while re-iterating that the constitutional immunity of the president is neither perpetual nor all-encompassing. “The ‘Public Trust Doctrine’ is based on the concept that the powers held by organs of government are, in fact, powers that originate with the People,” the judgement read, “with the sole objective that such powers will be exercised in good faith for the benefit of the People of Sri Lanka.”

Furthermore, Justice Tilakawardane said that it is not enough to argue that ‘procedure’ has been followed, when procedural compliance results in a violation of the public trust. In a harsh indictment against Sri Lanka’s public sector, the judgement declared that abdication of responsibility had become a hallmark of the country’s government bureaucracy. She states: “This duty has to be upheld not only in the name of good governance, but also for sustainable economic development of the nation and its entire people, especially the economically challenged, the disadvantaged and the marginalised. In time, this will empower the marginalised and disempowered members of our society, and will in due course establish a true Democratic Socialist Republic with equality for all.”

Stunned and hopeful
These two trailblazing judgements have already left an indelible mark on Sri Lankan society. Many in Colombo’s elite circles were stunned by the Supreme Court’s decisions against a powerful corporation and a former president. But what will these legal verdicts mean for the common person? The hope now is that these judgements will contribute to lowering corruption, collusion and nepotism between the public and private sectors. But will they help to round up corrupt public officials and bar them from holding public office? Will they help to uncover the networks of corruption and collusion among large multinational corporations, national corporations and the public sector? And, most importantly, will the Sri Lankan judiciary continue to stand up to corrupt practices, particularly after the terms of the current judges expire?

While the Supreme Court’s actions have indeed been energising, it would be naive to believe that the problems will be resolved in one stroke, and that Sri Lanka will immediately emerge as a ‘clean’ society. However, the judgements could certainly trigger and sustain a movement. Vasudeva Nanayakkara, the petitioner in the Lanka Marine Services case, says that Sri Lanka must now cultivate a strong people’s movement that can begin to fervently investigate, unearth and disseminate information on corrupt practices, and to prevent the misappropriation of public property. Such a movement must also ensure that the judiciary remains independent and impartial, and is empowered to continue to hear and make decisions on cases involving corporations and individuals who have long considered themselves to be outside the grasp of the law.

~ Mihiri Weerasinghe is an independent researcher in Colombo.