Case: Im­pli­ca­tions for Ex­ec­u­tive Pres­i­dency and State Sec­tor fi­nan­cial dis­ci­pline

Sunday Times (Sri Lanka) - - PICTURE CORNER/COMMENT -

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)

Some Bud­dhist monks tak­ing part in the cam­paign to col­lect money to pay the fines. Pic by M.A. Pushpa Ku­mara

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