Ban ministerial moonlighting

Ministerial posts must be full time jobs Serve public interest, not private clients

This Sunday morning, if Deputy Justice Minister Sujeewa Senasinghe should happen to notice from his Colombo digs that there has been a significant increase in his private legal practice and that a long queue of new clients has formed outside his law chambers, many of them importers of various goods, including ethanol and grease, wishing to retain him as their legal counsel, he will not be crediting the new and sudden demand at his door to his legal acumen or to his mastery of the intricacies of mercantile law.

Far more wisely now and more modestly he will, no doubt, attribute the sudden influx to his present exalted position as the Deputy Justice Minister who had rashly shown an ever ready eagerness last month to call on Customs officials over a client's copper cargo on the basis that he was only doing so as a lawyer representing his client for a fee. And today, if any were to ring his bell having misunderstood his actions, he will prudently be closing the door on them and refusing the briefs, after having realised that life as a government minister has its own invisible parameters which only an asinine fool would rush to cross.

Last fortnight, the deputy minister ran into a spot of bad weather when it was revealed that he had visited the Preventive Division of the Customs Department and had made an appeal to the Director of Customs to release a container load of copper worth millions of rupees imported on a duty free basis from the Sri Lanka Customs.

Mr Senasinghe rushed to put the record straight. He stated at a media conference that the client in question was a previous client of Namal Rajapaksa's law firm RR and that the client had been charged Rs. 2.5 million, but nothing had been done. Having failed to secure the release through Namal's RR, the client had approached him. "The consignment had been imported by a private company and I am appearing on behalf of the company as its lawyer as there is an inquiry held by Sri Lanka Customs where I only made an appeal on behalf of my client," he said, a daily newspaper reported on April 28.

It is not suggested in any way that Mr. Senasinghe, Deputy Minister of Justice, acted in any improper manner. On the contrary, it is his duty as a lawyer to represent his client to the best of his abilities and to pursue his client's interest to the utmost limits. Neither is there any law prohibiting a minister, even a deputy one for that matter, from calling up or dropping in on any public official for any reason. In fact, there is not even a code of ethics for ministers in this country that debars it.

Thus, it is open season for any minister so bent, or even his junior minister so hung up about his status, to flaunt the ministerial badge and 'sweet talk' a public servant to get things done and get it done in a flash. Nothing illegal about it, mind you. And, by Lankan standards, not even unethical. Another accepted perk that goes with the princely job, you might say, one that has been elevated to almost a consecrated right.

In fact, this freedom, granted by this practice which has been carried on without question or qualm and viewed by most ministers through the years as a personal right that comes with the post, enables them to give vent to their pent up natural impulses to serve the downtrodden people of this country to such an extent that sometimes they are even moved to involve themselves in the affairs of other ministries and give helpful instructions to other ministry officials purely to ensure that the oppressed people of the land are justly served and their imported container goods worth millions are duly passed with the least hassle.

Take, for instance, the shocking case of the former Prime Minister D. M. Jayaratne. It amply illustrates the instance where a fool rushes in where ministers must not tread. Not content with bearing the entire Buddha Sasana on his head, his desire to help another in need, even if he happened to be a Pakistani, drove him recklessly to issue on August 23, 2013, a letter to the Ports Authority which came under the former President's own ministry, requesting officials to exempt duty on a cargo of grease which turned out to be a shipment of heroin worth more than 300 million rupees on the streets.

The manifest power of their innocence as to what the grease cargo concealed, no doubt, exempted the then prime minister and his secretary who issued the letter on his behalf, from criminal prosecution. Needless to say, the benevolence bestowed upon his cronies by the then President Rajapaksa would have gone a long way in ensuring the matter fizzled out without much ado.

But though no law may forbid ministers, though no codified set of ethics exists to bar them from meddling in other ministries as if it is their inherent right to do so, whenever ministers or their sidekicks interfere in other ministries and try to influence government servants to do their implied bidding, one problem remains.

The public simply don't buy it. It doesn't go well with the masses who see it as a blatant abuse of power exercised under the cloak of darkness to confer personal benefits to the chosen few. The chit or call system which gets things done through the back door is totally against the transparency of government as promised in the Maithripala Manifesto. It may not be against the law, but neither does the law empower it and give legal sanction to it. It goes against the grain of open government, irrespective of the capacity in which the minister acts; no matter the justification produced in its defence.

There are well over 30 lawyers in the Maithripala government of ministers, state ministers and deputy ministers. What if they, claiming they had an absolute right to represent their clients and further their client's interest to the maximum, barged into government departments and badgered government servants to act in their clients' favour? Would they be acting in accordance with the concept of yahapalanaya? Would it be right for them to say they owe a duty to their client to do so and that it overrides all other duties and takes precedence?

Though they may genuinely think they are appearing before the government servant in their capacity as lawyers and not as ministers, would the government servant hear their requests as made by lawyers or as hear their whispered requests almost as loud command made by government ministers adorned with all the power and trappings of high government political office, representing the people? Would it be realistic to think that the weight of a request made by any lawyer will be the same as that made by a lawyer who also is a minister of the government?

Consider the following hypothetical case. If Galle UPFA MP, and Deputy Minister in the Rajapaksa Government, Muthuhettigama had been a lawyer, even a two bit shyster, and if he had gone to the Galle Police Station to secure the release of two of his henchmen and ordered the OIC to do so -- as he actually did last December -- could he have justified his actions on the basis that the two men were his clients and that he, as their lawyer, had a duty to do his utmost to secure his client's release? Could he have emerged from the episode smelling of roses if he had said he went there only in his capacity as a lawyer and did not in any way flex his deputy ministerial clout to overawe the police into submission? And that neither did the police take the slightest cognizance of the fact that he was a deputy minister but treated him only as a lawyer come there to do his duty to his client?

This hypothetical case illustrates why it is not advisable to allow ministers and their deputies to moonlight. In the vast field of ministerial activity, none can predict what conflicts of interests may arise in bizarre circumstances and it would be an outright folly for the government, especially one so wedded to the principles of just governance, to risk its credibility by leaving the door open for ministers to plunge into the mire.

They are appointed to that high office to serve the people one hundred percent. It is not to do their private legal practice and claim some sort of special immunity to breach the principles of yahapalanaya and bring the Government into disrepute and ridicule. They must return their briefs hereafter before they sit in the ministerial chair. Honour of office, which entitles them to tag the honourable handle to their name demands sacrifice.

And what goes for lawyers must hold good for others too. Ministers must no longer be allowed to indulge in private business either. Remember Mahindananda Aluthgamage? The former sports minister now under investigation for corruption, whose passport has also been impounded? Last year when he was questioned by the opposition as to how he had acquired valuable properties in Colombo 7 on a ministerial income, of Rs 65,000 per month, his boorish answer was that he has his private business and does not depend on his ministerial salary. Or take Mervyn who when asked in a TV chat show how his son could afford to drive in an expensive sports car, nonchalantly replied, "don't forget we have our family business."

The view that a ministership is a con- venient part time job that can be made use of to promote their main business activity can no longer be tolerated as it was done under the previous regime.

Former Bar Association President and now Minister of Justice, President’s Counsel Wijeyadasa Rajapakshe, whose clientele will fill a telephone directory, has not taken to representing his clients to further their interests at Government departments. He best understands the political perils involved in permitting ministers and deputies to perform dual roles and how principles of good governance can be compromised when conflicts of interests inevitably arise. In order to strengthen the principles of Maithripala's Yahapalanaya, he should introduce, as an integral part of good governance, an enforceable Code of Ethics for Ministers and Deputy Ministers, making it a point to particularly include therein two vital points, as suggested by K.H.J. Wijayadasa, former Secretary to President Premadasa, which are as follows: You should conduct yourself in such a manner that you do not use your official position to support or further any scheme or contract in which you have a private financial interest. You should not accept any benefit whatsoever from any person who has entered into, or intends to enter into any contractual, proprietary, financial or such other relations with the government. The precedent that was established in the Court of Mahinda Rajapaksa in 2005 for ministers to act ultra vires their ministerial powers and to indulge in any private business or activity they wished with no questions asked even by the Inland Revenue, was overruled in the historic judgement of People v Rajapaksa delivered on January 8, 2015. Any attempt to restore it by means of distinguishing it on the grounds of special circumstances will be to negate the people's momentous victory and will make Maithripala's ministers no different from Mahinda's gang.

There are well over 30 lawyers in the Maithripala government of ministers, state ministers and deputy ministers. What if they, claiming they had an absolute right to represent their clients and further their client's interest to the maximum, barged into government departments and badgered government servants to act in their clients' favour?