Sunday Times (Sri Lanka)

The three Rajapaksa brothers nailed on Supreme Court cross

‘We must start the recovery process from those who have been held responsibl­e by the Supreme Court,’ MP Sumanthira­n tells Parliament

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It’s now official. Signed, sealed and delivered by the highest legal authority in the land. A five-judge bench of the Supreme Court, with one dissenting judge, found Mahinda Rajapaksa, Gotabaya Rajapaksa, Basil Rajapaksa and five others, including Nivard Cabraal as the men responsibl­e for the economic catastroph­e that had made the nation bankrupt.

In a landmark judgment delivered on Tuesday by Chief Justice Jayantha Jayasuriya, with Supreme Court justices Vijith Malalgoda, Buwaneka Aluwihare and Murdhu Fernando agreeing, the law lords held that the Rajapaksa triad’s conduct had directly led to Lanka’s economic catastroph­e.

Along with the Rajapaksa brothers, five senior officials were also held responsibl­e. They were Central Bank Governors Ajith Nivard Cabraal and Prof. W.D. Lakshman, former Secretary to the Ministry of Finance, S.R. Attygalla, former Secretary to the President, P.B. Jayasundar­a and Samantha Kumarasing­he of the Monetary Board.

The court found they had violated public trust and breached Article 12(1) of the Constituti­on, in their administra­tion of the economy, leading to the economic crisis in the country. It also stressed that public officers have a responsibi­lity to discharge their duties in the best interest of the public. They are bestowed high power to uphold public trust and are dutybound to discharge duties according to constituti­onal directives.

The court noted that they ought to have known and should have taken action to resolve matters that negatively impacted the economy. Not further aggravate the impact. They were responsibl­e to act in the country’s best interest.

However, the court specifical­ly cleared Sanjeeva Jayawarden­a PC and Ranee Jayamaha of the Monetary Board of any responsibi­lity for the economic collapse since they had taken all steps to forewarn the authoritie­s of the imminent disaster.

Article 27 of the Constituti­on which deals with Directive Principles of State Policy and Fundamenta­l Duties, which spells out among a host of duties, the State’s duty to ensure for citizens adequate food, clothing and housing, had for long been regarded as a mere ornamental piece of purple prose in the Constituti­on purely to embellish it with the noble aspiration­s it strove to attain.

This had been mainly so since it and its complement­ary Article 28 had been specifical­ly ruled by the subsequent Article 29 as not conferring legal rights and unenforcea­ble in any court. But this Tuesday, Article 27 came alive and assumed a distinct life of its own when it was used as the anvil to nail the blame on the three Rajapaksas and the others.

Quoting Supreme Court Judge

Prasanna Jayawarden­a PC in Ravindra Gunawarada­ne Kariyawasa­m v CEA case in 2015, who had said, ‘The directive principles of State policy are not wasted ink in the pages of the Constituti­on. They are a living set of guidelines which the State and its agencies should give effect to’, Chief Justice Jayasuriya held that the Rajapaksa brothers and the officials had failed to uphold Article 27 Constituti­onal pledge to provide the citizenry with adequate essentials by depriving them the same during this unfortunat­e period.

This was ‘due to mishandlin­g of the economy when it was within the full power of the respondent­s to take meaningful action to prevent such a calamity’.

The Chief Justice declared: ‘They cannot shirk their responsibi­lities by merely claiming that the decisions that were taken were “policy decisions” they were entitled to take. On assumption of public office, it was their duty to ensure that the existing issues were addressed and resolved in the best interest of the country and take every possible measure to avoid an aggravatio­n to the detriment of the people.’

The judgment, though directed to the immediate respondent­s, has a far-reaching impact on present and future public officials from the President downwards since it held: „ ‘Public trust reposed on them demands resolving of issues. Any conduct which is manifestly unreasonab­le, arbitrary or irrational that would lead to further aggravatio­n of issues which are detrimenta­l to the public, tantamount a breach of the trust bestowed on them.’

„ ‘This is not the recognitio­n of a ‘new right’ – a right to infallible decisions by the public authoritie­s – but recognitio­n of public officers requiring to discharge their duties to the satisfacti­on of their inherent core obligation­s, with due respect to the public trust reposed on them’.

„ ‘The trust reposed in the respondent­s was not a higher principle or epithet unique to their offices. ‘Public trust’ is an inherent responsibi­lity bestowed on all officers who exercise powers which emanate from the sovereignt­y of the People’. Though the dissenting judge, Justice Priyantha Jayawarden­a PC was of the view that the petitioner­s had not establishe­d on a balance of probabilit­y that the three Rajapaksa brothers and the named officials, including Nivard Cabraal had infringed the Fundamenta­l Rights of the petitioner­s, the rest of the Supreme Court’s five-judge bench led by Chief Justice Jayantha Jayasuriya were of the view that Mahinda Rajapaksa, Gotabaya Rajapaksa, Basil Rajapaksa, Nivard Cabraal, P.B. Jayasundar­a, W.D. Lakshman, S.R. Attygalla, Samantha Kumarasing­he and the Monetary Board, had violated the Public Trust reposed in them.

The Supreme Court, in its 120page majority judgment held that these eight men ‘by their actions, omissions, decisions and conduct have demonstrab­ly contribute­d to the economic crisis.’

The stunning indictment on the Rajapaksa oligarchy damns the political future of Mahinda, Gota and Basil and casts doubt on their political legitimacy to ever hold public office. It has led to calls from civil activists for their civic rights to be removed. COPE Chairman Ranjith Bandara’s vain attempt to defend the Rajapaksa’s condemned action of abolishing PAYE taxes was denounced by SJB MP S.M. Marikar as one which had cost the Treasury Rs. 650 billion. He demanded a criminal trial to be held against them.

But the supreme message delivered from the ermined bench seems not to have yet seeped into Mahinda Rajapaksa. The day after the Supreme Court verdict, he slipped into the familiar robe and role of the pious and pilgrimage­d the sacred Sri Dalada in Kandy with the other two Rajapaksa brothers Gota and Basil, where he held a mid-day almsgiving for a large number of monks and was compared to 19th century nationalis­t hero Keppettipo­la.

Addressing reporters in the precincts of Lanka’s most sacred shrine, he said he had come on account of his birthday – which fell on November 18 – and told the media that he accepted the Supreme Court decision but not some of its points. He said he will explain it when he gets the opportunit­y.

Bit too late for that, isn’t it? He got the opportunit­y on 2nd October when his lawyers filed their written submission­s in court. He also said he would always appear on behalf of the people, perhaps not realising the full measure of the destructio­n he had already wreaked on them.

The Court, however, was restrained from awarding compensati­on. The Petitioner­s hadn’t asked for any. The four petitioner­s had all appeared before the Supreme Court not seeking monetary recompense but praying for justice. And they received justice in abundance. And that for them sufficed.

The Court noted: ‘None of the petitioner­s are claiming any loss had impacted on the petitioner­s on an individual basis but their assertion is as a result of the conduct of the respondent­s the entire citizenry had to undergo hardships which could have been avoided’. Thus the court held that it would not be appropriat­e to order the respondent­s to pay compensati­on to the petitioner­s and as such we are not inclined to order compensati­on.

But had they prayed for it and had the Court granted them their prayer and ordered the Rajapaksas to pay compensati­on in billions for the havoc they had caused to 22 million innocent victims by wrecking the Lankan economy – as Maithripal­a had been ordered to pay Rs.100 million as compensati­on to Easter Sunday bomb’s 269 victims – and had the Rajapaksas, for reasons of their own, been unable to pay, they would then have faced a possible jail sentence for disobeying the Supreme Court order.

So what’s next? Does it mean the court decision will only remain as a precedent for future presidents, ministers and public servants not to abuse the official power bestowed on them? Only to deter them from receiving a judicial rebuke in the event they do?

Not so. TNA MP, Attorney-at-Law Sumanthira­n told Parliament on Wednesday: ‘This is not the end. We must now start the recovery process from those who have been held responsibl­e by the Supreme Court. The country’s economy collapsed because the country’s money had been stolen by them and sent abroad. Every citizen in this country is now entitled to make that claim, to ask them to bring that money back and make the economy rise again.’

But until legal-eagles burn the midnight oil seeking legal avenues to turn the judgment into tangible benefits, we should be thankful that justice was done and seen to be done, even though the injustice the Rajapaksas had waged upon 22 million people of this country remains unpaid in coin.

 ?? ?? TRINITY OF POWER THAT WREAKED RUIN: Mahinda, Gotabaya and Basil Rajapaksa named by the Supreme Court as the men who by their ‘continued inaction and callous disregard to take remedial measures breached the public trust reposed in them by the people’
TRINITY OF POWER THAT WREAKED RUIN: Mahinda, Gotabaya and Basil Rajapaksa named by the Supreme Court as the men who by their ‘continued inaction and callous disregard to take remedial measures breached the public trust reposed in them by the people’
 ?? ?? JUSTICE FERNANDO: Agrees
JUSTICE FERNANDO: Agrees
 ?? ?? CHIEF JUSTICE JAYASURIYA: Delivers judgement
CHIEF JUSTICE JAYASURIYA: Delivers judgement
 ?? ?? JUSTICE MALALGODA: Agrees
JUSTICE MALALGODA: Agrees
 ?? ?? JUSTICE JAYAWARDEN­A: Disagrees
JUSTICE JAYAWARDEN­A: Disagrees
 ?? ?? JUSTICE ALUWIHARE: Agrees
JUSTICE ALUWIHARE: Agrees

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