Case: Implications for Executive Presidency and State Sector financial discipline
Two legal proceedings were much talked about during the past week -- the commission probing the Central Bank bond transactions and the so-called Sil-Redi case in the High Court of Colombo.
Both these proceedings confirm that the administration of justice in this country is alive and kicking and have the potential to mete out justice to all, irrespective of the issues involved.
Apart from the evidence that has so far transpired before the Commission of Inquiry , what has been the subject of discussion among the public is the Commission’s order that Arjun Aloysious who is the central figure in the matter before the Commission is entitled to, if he so chooses (as he has now done ), not to give evidence and that he cannot be compelled to do so even though his evidence is relevant.
The Commission’s order has been based on the legal dictum embodied in the Sri Lankan law that no person can be compelled to give evidence which is self incriminating. The Commissioners in their order have interpreted the law on the subject and set out their reasoning in arriving at such conclusion. The Commission has refused to play to the gallery by compelling Aloysious to give evidence but rather, to use the words of the Commission in their order, chose to be ‘coldly neutral’. The Additional Solicitor General has voiced his disagreement with the Commission’s order as he is entitled to do and has indicated that he will discuss the matter with the Attorney General.
The Commission’s order has understandably puzzled members of the lay public who may not understand the complexities of the law. That judges have to apply the law to the evidence before them and cannot take into consideration extraneous factors is something not easily understood by laymen.
Sections of the political establishment have been quick to jump to their own conclusions. National Freedom Front leader Wimal Weerawansa who functions as a de facto Joint Opposition spokesman screamed his disapproval of the Commission’s order. His disparaging comments are not in the least surprising, given the NFF leader’s conduct in humiliating former Chief Justice Shirani Bandaranayake when she was arraigned before the Parliament Select Committee.
The Commission in its order has also gone to great lengths to list out the matters on which Aloysious’ evidence would have been relevant and therefore helpful to the Commission in coming to a finding on the matters within its remit. In doing so the Commission has been fair to Aloysious enabling him to take an informed decision whether to give evidence before the Commission or not.
The other legal proceeding that has evoked a great deal of public interest is the judgment and the fallout of from what is popularly known as the Sil-Redi case. Once again the order of the High Court judge has attracted many observations and been subject to discussion in several forums.
To understand the High court Judge’s reasoning that led to his finding in this trial it is necessary to study the judgment in the case which is not yet readily available in the public domain. A judgment delivered by a court sets out the reasoning that guided the Court in arriving at its finding. As is often the case, there may be different views with regard to the interpretation of the law or evidence, but the reasons set out in the judgment provide the parties concerned an understanding of why the judge came to his conclusion.
If it is perceived by one party that the judgment or the process leading up to a judgment is erroneous, the law provides that the aggrieved party can avail himself (as done in this case) of the appellate process whereby a higher court will review the matter and mete out justice by quashing, confirming or varying the judgment after submissions by the parties concerned.
But what is more troubling is the reaction after the judgment. Former President Mahinda Rajapaksa has publicly taken full responsibility for giving the order and stated that the two officials had only implemented a legitimate order. In a detailed statement, the former President sets out the steps taken to use the Telecommunications Regulatory Commission’s funds and the justification for applying these funds to the Sil-Redi project.
He has also used the statement to critique the process of reasoning of the High Court Judge in accepting or rejecting the testimony of witnesses. This is usually a matter which is done during arguments before the Appellate Court where the Counsel from the Attorney General’s Department usually defends the reasoning in the judg- ment. Unilateral comments on a court’s reasoning in a public forum and more so in political forums can cause damage to the image of the judiciary in the eyes of the non-discerning public. While the former President has been careful not to cast aspersions on the High Court, yet statements made on other political platforms do not always show such restraint.
Given all details in his statement, Defence lawyers may have given due consideration to calling the former President as a defence witness to clarify matters. Whether a witness should be called or not is, however, the Defence lawyer’s prerogative and he would have undoubtedly decided not to do so after deeming it not to be in the interests of the Defence to summon the former President as a witness.
Another matter of concern is the Joint Opposition’s effort to take political advantage of the judgment by mounting a campaign to collect money to pay the fines and compensation from the public with the help of some members of the Buddhist clergy. Several aspects need to be examined here. The fines and compensation will not become immediately payable, now that an appeal has been filed. What will happen to the money collected if the appeal is upheld? How desirable is it to enlist the services of the Buddhist or for that matter any clergy to pay the fines or compensation in respect of a conviction which is essentially of a criminal nature? Would this amount to sanitising by the clergy of action that a court has held to be criminal and what message would this give the public in general and the youth in particular?
When the Buddhist clergy silently go round collecting alms most people will contribute thinking it is for religious purposes. Thus would it not be better for a group of JO politicians in the interest of transparency to go along with them explaining the purpose for which money is being collected.
But beyond all this, two fundamental matters relating to governance stand out, demanding the attention of the public and the Government.
The first is the enormous power exercised by one individual -- the Executive President, in whom executive power is vested by the Constitution. According to former President Rajapaksa, he had given verbal orders to spend 600 million rupees on the distribution of Sil Redi in addition to expenditure on seven other projects. This means the total expenditure incurred on a mere verbal order would have been much more than 600 million rupees. Assuming that the former President’s order is legal as claimed by him, it is mind boggling that one individual -- the Executive President -- can by a mere oral order disburse public funds of such magnitude without the requirement to put down in writing the rationale and thinking behind such an order, which, in turn, should have been preceded by a detailed discussion of the merits and demerits of such a course of action.
It is also an indication of the power that envelopes the holder of such office who is untrammeled neither by the ‘whims and fancies of Parliament’ nor by the financial and administrative regulations. Such power cannot be good for the individual holding such office; nor can it bode well for the political health of the country. In such a context it is surprising that there are those who still advocate the retention of the institution of the Executive Presidency in a new Constitutional arrangement.
The other matter that impinges on the issue of governance is the question of financial discipline in the public sector. There is an urgent need to tighten up procedures to ensure the protection of public funds – and also to safeguard public officials from undue pressure -- from politicians who seek to misapply such funds in an irregular manner. Tightening up procurement procedures and the speedy activation of the National Audit Bill by the Government will greatly assist in achieving these goals.
(javidyusuf@gmail.com)