Judicial death blow to the executive presidency
By Sonali Samarasinghe
The Golf Course judgment last week was to send shock waves through the political establishment and shake the very foundations of the Executive President upon which now sits a man bloated by a toxic sense of monarchical and indeed maniacal power.
The judgment has effectively whittled down the powers of the Executive Presidency even holding that the constitutional immunity of the President is neither perpetual nor all encompassing. While the Executive President is not shielded by immunity for his/her personal actions this judgment in effect makes the present Executive – Mahinda Rajapakse vulnerable to the full force of the law on all his official acts during his presidency as well.
Not above the law
The Supreme Court has been nudging at Presidential immunity before this. In the Constitutional Council case now before the SC, the apex court declared that no one is above the law and issued notice on President Rajapakse to appear before court thus denting the perception of blanket immunity.
But the golf course judgment is far more lethal to unbridled power wielded by political epileptics. And it is because of this that present and future leaders and holders of public office and indeed investors and the private sector should sit up and take notice.
And apart from the immediate effect the judgment would have on former powers that strode Sri Lanka’s political corridors, it would be the far reaching consequences the judgment’s obiter dicta would have on the holders of public office, the office of the Executive President, the doctrine of public trust, the responsibility towards the environment that will give the public confidence and hope, and have those in power quaking in their knees.
While hailing the Supreme Court once again, the brutality that greeted this country at the top of the week cannot be ignored coupled later in the week with one of the most far reaching Supreme Court judgments written in recent times.
SL breaks story
The Sunday Leader has particular interest in the judgment as it was this newspaper that first and exclusively broke the controversial golf course story way back in 1998 with cabinet papers et al. We called Asia Pacific Golf Course Ltd., a fly by night hoax specifically floated to receive massive swaths of government land at concessionary rates and terms. Land mind you which were imperative not only for the delicate eco systems that survive in the wetlands but also as storm water retention areas.
The Sunday Leader not only broke the story but we researched and laid the deal bare in the public interest, just as we did 10 years ago with the Air Lanka deal, just as we now do with Mihin Lanka, with Lanka Logistics, and other government deals that are less than transparent and more than allegedly corrupt and in violation of the law of the land.
Following intense coverage of the issue by this newspaper, other news media also subsequently reported on the story. Based on these news reports a civil society group in the public interest instituted legal action by way of a fundamental rights petition.
Bribery Commission directed
However the SC has this time not only ignored such considerations but in the final page of the 61 page judgment directed the Bribery Commission to conduct an immediate inquiry into the transaction under all relevant laws on the actions of former President Kumaratunga, Ronnie Peiris and original shareholders of Asia Pacific, Siva Selvaratnam, Suen Selvaratnam and Shantha Wijesinghe.
Telescopic
That said the fall out of the telescopic judgment on the golf course deal is far more devastating to the survival of the executive presidency both present and future, than it is to the wounded image of a former President whose current political excitement is now limited to a photo op with another former President, Bill Clinton.
Apart from the slight dent in their purses by the payment of fines of Rs. 3 million and Rs.2 million respectively imposed on former President Chandrika Kumaratunga, whom the Supreme Court held had grossly abused her powers, and her buddy Ronnie Peiris described in the judgment as a man who procured and peddled executive favours, there are far reaching consequences for holders of public office including the office of the Executive President.
But the golf course judgment goes into the meat of the Executive Presidency and bites off a great chunk. And it is because of this that present and future leaders and holders of public office and indeed investors and the private sector should sit up and take notice.
Cabinet hideaway
That said it is often the habit of politicians to hide behind collective responsibility and cabinet approval. But an illegal act is not made legal merely because it gained cabinet approval. In a political atmosphere where on one occasion in the Rajapakse cabinet 40 cabinet papers were passed in less than 40 minutes and ministers are bulldozed into approving memoranda with no real discussion or research, the stamp of cabinet approval is a whited sepulchre.
Former Aviation Minister Mangala Samaraweera was forced to sign the Mihin Lanka Cabinet Memorandum and given just two hours breathing space to do so. A contributory factor that later led to his fall out with Rajapakse. And the ministers were not even given the cabinet paper for study, a point we made at the time of the exposure. Little wonder judicial intervention is needed, to save this country from its political executives.
Mutha of a judgment
In this context one perhaps would not be faulted for calling this latest Supreme Court order a ‘mutha’ of a judgment. There is in its quality, its tenor, a feeling that Justice Shiranee Tilakawardena especially in her obiter dicta is laying down general rules of behaviour for politicians, businessmen, and generally people of wealth and power. There is a character in this judgment that undoubtedly makes it a Tilakawardena masterpiece. A judgment agreed to by Chief Justice Sarath Silva and Justice P.A. Ratnayake as part of the three member bench.
For a man such as President Mahendra Percival Rajapakse, whose brothers Gotabaya, Chamal and Basil are Defence Secretary, Aviation Minister and Senior Presidential Advisor respectively, who together control 80 percent of this country’s Treasury funds, to a man who has been able to employ over 130 of his relatives in various public office since his ascension to power, the sentence in the judgment which states ‘public power is not for personal gain or favour, but always to be used to optimise the benefit of the people,’ may jar a little.
No lusty applause
The following sentences, ‘to do otherwise would be to betray the trust reposed by the people within whom, in terms of the constitution, the sovereignty reposes. And thus power exercised contrary to the Public Trust Doctrine would be an abuse of power and in contravention of the Rule of Law,’ may fail to draw lusty applause from the Rajapakse camp.
The judgment striking a blow to the public sector also states that there is an abdication of responsibility to act ‘reasonably and in good faith and upon the lawful and relevant grounds of public interest,’ and such abdication has become ‘a hallmark of Sri Lanka’s governmental bureaucracy, and that the state must in the public interest expect high standards of efficiency and service from public officers in their dealings with the administration and the public.
Former President Kumaratunga however, in her submissions to court had denied there was abuse of power on her part and said that due process was followed with regard to the grant of the land. Neither had she at any time pleaded immunity, a fact the court acknowledged.
Root out corruption
The judgment however seeks to strengthen and root out corruption in the public sector and strives one believes, to set the fundamentals right. Perchance this was the reason that even in the LMSL case it was for the top Treasury official P.B. Jayasundera’s jugular rather than for the throats of erstwhile politicians that the SC went. The thinking it would seem is that if the administrative and executive wheels are squeaky clean then corrupt politicians will find it hard to bend upright public officials who will have the spine and the integrity to stand up to them.
And it would also seem that in this quest to infuse this country with decency the Supreme Court attempts to use a multi pronged approach of taking severe action against errant public officials, whittling down executive power and pressuring the Bribery Commission into action by legal directives in built into judgments as in this case and in the LMSL case.
BOI on the dock
But this judgment also takes a heavy swipe at the Board of Investment charging it with a grave responsibility under the Public Trust Doctrine.
The judgment refers to nine pieces of concession related correspondence between the parties leading up to the BOI agreement that provided Asia Pacific with a whopping 12 year tax holiday.
The BOI did not evince any evidence that it had investigated the creditworthiness or managerial competency of the shareholders or whether the ‘foreign investor’ – a Japanese individual – (that provided the foreign investor motif necessary for BOI concessions) even existed, the court holds.
The BOI the SC observes granted approval within two months of the application for BOI status despite the application failing to contain any concrete financial or independent references of the collaborators. The BOI could not have possibly performed the due diligence required for a prudent determination of project feasibility.
Undercapitalised
The court also holds that the BOI "Effectively allowed an otherwise entirely undercapitalised company to obtain significant tax concessions only available to highly capitalised projects..." The BOI the judgment states approved downward adjustments in concessionary offerings to Asia Pacific without holding a shred of knowledge as to the actual or likelihood of capitalisation of the company and the project," the judgement states. This, the SC holds is a clear violation of Public Trust.
The court in this instance observes that the actions of the UDA and BOI are not a series of otherwise unintended missteps but a part of a larger agenda to successfully consummate the transaction in spite of a procedural process that if properly executed would have prevented it.
Lessons for Mihin
And it is here again that a lesson lies for the Mihin Lanka project. It was in fact Gotabaya Rajapakse himself who signed the BOI application as chairman of Mihin. The application for BOI concessions was made projecting an investment of billions of rupees. The application did not take BOI two months but rather 24 hours to approve.
Another shareholder of Mihin, the much impugned PBJ was once to tell this newspaper he knew nothing about airlines. It shows. He was a founder shareholder of the Mihin disaster, he under negotiated the Emirates privatisation in 1998 as Treasury chief and up until last week hung on to his chairmanship of the ailing SriLankan Airlines the Emirates left in disgust.
Failed deal
That Mihin is now a failed project with over a three billion rupee loss to its name with even the government admitting it mismanaged the budget airline is old news. Following this judgment if we were Mihin shareholders we’d call our lawyers.
It is unlikely surely that anyone will see the actions of the People’s Bank, the Bank of Ceylon, The Lankaputra Bank and the Treasury as it sunk money into Mihin, and the actions of the BOI and the cabinet as it approved transaction after transaction, as a series of unintended missteps either.
And the BOI under the present Chairman Dhammika Perera must look sharp as well. It has a responsibility to investigate and conduct due diligence before it rubber stamps projects emanating from the Rajapakse quarters.
Immunity
But perhaps the most significant aspect of this dynamite judgment is that it whittles down the powers of the presidency.
No unlimited power
(1) The judgment states that ‘no single position or office created by the constitution has unlimited power and the constitution itself circumscribes the scope and ambit of even the power vested in the President.’
One may expect Rajapakse to jump from his seat as if pricked in the rear by a bradawl.
No free lunch
(2) Nothing comes free least of all power. The SC states the constitution confers extensive executive powers in exchange that he/she would faithfully perform the duties as per the oath to the best of his ability, to follow the rule of law and keeping in mind always the public trust doctrine.
Ditto for a minister. Especially a minister who is self appointed using the power of the Presidency, like Kumaratunga was and Rajapakse is — both Minister of Finance and Defence.
The court goes further than that. The executive power of the people is held in trust and acquired through the sovereignty of the people, it says. ‘While the exercise of Presidential power is a duty that must accord with the Rule of Law, such compliance should also come from one’s own conscience and sense of integrity as owed to its people.’
Limited by moral law
(3) Therefore the executive powers are not only circumscribed by the law of the land but according to the court by a higher moral law and if in violation of either or both the executive cannot claim immunity.
In this the judgment echoes the premise of the Nuremberg trials which held officers could not plead the defence of higher orders if the action was so base it went against moral law.
Limited by tenets of constitution
(4) The judgment also states "Being a creature of the constitution, the president’s powers in effecting action of the government or of state officers necessarily limited to effecting action by them that accords with the constitution."
But then the judgment explains this in bold letters. "In other words, the President does not have the power to shield, protect or coerce the action of state officials or agencies, when such action is against the tenets of the constitution or the Public Trust, and any such attempts on the part of the President to do so should not be followed by the officials for doing so will (i) result in their own accountability under the Public Trust Doctrine, betraying the trust of good governance reposed in them under the constitution by the people of this nation, in whom sovereignty reposes and (ii) render them sycophants unfit to uphold the dignity of public office."
Again in this paragraph are echoes of the Nuremberg doctrine and the rationale for the Supreme Court’s harsh treatment of the former Treasury Secretary in the LMSL case.
Absence no excuse
(5) But if present and future presidents think they are off the hook then former President Kumaratunga would tell them otherwise through bitter experience. The court while pruning the executive presidency on the one hand does not in anyway diminish its huge responsibility towards its people.
CBK as part of her plea of propriety at one point in her submissions blames the issuance of the cabinet memorandum approving the construction of villas and apartments as an action taken while she was out of the country and as a result of the shift of government control to the UNF in 2001.
The SC was to have none of it. The assertion of powerlessness by Kumaratunga the court called unbecoming and stated, ‘belies the inordinate constitutional power held by the President as head of the cabinet.’
Therefore the executive president cannot divest himself of responsibility even if parliament was controlled by a party other than his own and even if he were absent at the time.
Present and future presidents beware
(6) The judgment now states as follows and indeed it is this part of the judgment that is crucial to the incumbent President.
"Furthermore although no attempt was made by the First Respondent (CBK) to argue such point, we take opportunity to emphatically note that the constitutional immunity preventing actions being instituted against an incumbent president cannot indefinitely shield those who serve a president from punishment for violations made while in office and as such should not be a motivating factor for presidents – present and future – to engage in corrupt practices or in abuse of their legitimate powers.
"That the president like all other members of the citizenry, is subject to the Rule of Law, and consequently subject to the jurisdiction of the courts, is made crystal clear by a plain reading of the constriction…. Such a conclusion is unequivocal. To hold otherwise would suggest that the president is, in essence, above the law and beyond reach of its restrictions. Such a monarchical /dictatorial position is at variance with (i) the democratic socialist republic that the preamble of the constitution defines Sri Lanka to be and (ii) the spirit implicit in the constitution that sovereignty reposes in the people and not in any single person."
While this passage is self explanatory it also shows that an executive president is not immune from action for his official acts which may be the subject of litigation once his term is over.
Fine as lesson
(7) Even in imposing the fine on the former president the judgment states it does so to remind present and future state actors (read executive presidents) and agencies (1) of their paramount duty to further the public trust and (2) their actions are subject to the Rule of Law.
The judgment sends a message to private actors who like in the golf course case and earlier in the LMSL case make use of government corruption to procure special and unfair benefit and by doing so mutate the playing field and deprive the citizenry of their fundamental right to equality.
Review
In the light of this judgment Rajapakse would do well to seek legal counsel on many of his hair brained projects but also review the proposed ambitious Mass Rapid Transit System (MRT) project handed over to an Indian company on an unsolicited proposal, while the same Indian company had been simultaneously gifted two and a half acres of state land near The Water’s Edge in Battaramulla to construct a massive 60 storey tower for summa. A matter already exposed by this newspaper in 2007.
The land worth well over Rs. 900 million even at a modest estimate has been assigned to the Indian company on June 22, 2007 even before being officially valued in order to put up a massive commercial complex that would largely benefit the developer. The BOI signed the agreement for the new 60 storey building with NEB Rapid Infrastructure Projects Pvt. Limited of Bangalore, India.
-From Sunday Leader -20081012
Some parts are removed randomly due to space limitations.
Read full article at http://www.thesundayleader.lk/20081012/spotlight.htm
Chandrika Kumaratunga, Mahinda Rajapakse,
Sarath N. Silva and Shiranee Thilakawardena
Sarath N. Silva and Shiranee Thilakawardena
By Sonali Samarasinghe
The Golf Course judgment last week was to send shock waves through the political establishment and shake the very foundations of the Executive President upon which now sits a man bloated by a toxic sense of monarchical and indeed maniacal power.
The judgment has effectively whittled down the powers of the Executive Presidency even holding that the constitutional immunity of the President is neither perpetual nor all encompassing. While the Executive President is not shielded by immunity for his/her personal actions this judgment in effect makes the present Executive – Mahinda Rajapakse vulnerable to the full force of the law on all his official acts during his presidency as well.
Not above the law
The Supreme Court has been nudging at Presidential immunity before this. In the Constitutional Council case now before the SC, the apex court declared that no one is above the law and issued notice on President Rajapakse to appear before court thus denting the perception of blanket immunity.
But the golf course judgment is far more lethal to unbridled power wielded by political epileptics. And it is because of this that present and future leaders and holders of public office and indeed investors and the private sector should sit up and take notice.
And apart from the immediate effect the judgment would have on former powers that strode Sri Lanka’s political corridors, it would be the far reaching consequences the judgment’s obiter dicta would have on the holders of public office, the office of the Executive President, the doctrine of public trust, the responsibility towards the environment that will give the public confidence and hope, and have those in power quaking in their knees.
While hailing the Supreme Court once again, the brutality that greeted this country at the top of the week cannot be ignored coupled later in the week with one of the most far reaching Supreme Court judgments written in recent times.
SL breaks story
The Sunday Leader has particular interest in the judgment as it was this newspaper that first and exclusively broke the controversial golf course story way back in 1998 with cabinet papers et al. We called Asia Pacific Golf Course Ltd., a fly by night hoax specifically floated to receive massive swaths of government land at concessionary rates and terms. Land mind you which were imperative not only for the delicate eco systems that survive in the wetlands but also as storm water retention areas.
The Sunday Leader not only broke the story but we researched and laid the deal bare in the public interest, just as we did 10 years ago with the Air Lanka deal, just as we now do with Mihin Lanka, with Lanka Logistics, and other government deals that are less than transparent and more than allegedly corrupt and in violation of the law of the land.
Following intense coverage of the issue by this newspaper, other news media also subsequently reported on the story. Based on these news reports a civil society group in the public interest instituted legal action by way of a fundamental rights petition.
Bribery Commission directed
However the SC has this time not only ignored such considerations but in the final page of the 61 page judgment directed the Bribery Commission to conduct an immediate inquiry into the transaction under all relevant laws on the actions of former President Kumaratunga, Ronnie Peiris and original shareholders of Asia Pacific, Siva Selvaratnam, Suen Selvaratnam and Shantha Wijesinghe.
Telescopic
That said the fall out of the telescopic judgment on the golf course deal is far more devastating to the survival of the executive presidency both present and future, than it is to the wounded image of a former President whose current political excitement is now limited to a photo op with another former President, Bill Clinton.
Apart from the slight dent in their purses by the payment of fines of Rs. 3 million and Rs.2 million respectively imposed on former President Chandrika Kumaratunga, whom the Supreme Court held had grossly abused her powers, and her buddy Ronnie Peiris described in the judgment as a man who procured and peddled executive favours, there are far reaching consequences for holders of public office including the office of the Executive President.
But the golf course judgment goes into the meat of the Executive Presidency and bites off a great chunk. And it is because of this that present and future leaders and holders of public office and indeed investors and the private sector should sit up and take notice.
Cabinet hideaway
That said it is often the habit of politicians to hide behind collective responsibility and cabinet approval. But an illegal act is not made legal merely because it gained cabinet approval. In a political atmosphere where on one occasion in the Rajapakse cabinet 40 cabinet papers were passed in less than 40 minutes and ministers are bulldozed into approving memoranda with no real discussion or research, the stamp of cabinet approval is a whited sepulchre.
Former Aviation Minister Mangala Samaraweera was forced to sign the Mihin Lanka Cabinet Memorandum and given just two hours breathing space to do so. A contributory factor that later led to his fall out with Rajapakse. And the ministers were not even given the cabinet paper for study, a point we made at the time of the exposure. Little wonder judicial intervention is needed, to save this country from its political executives.
Mutha of a judgment
In this context one perhaps would not be faulted for calling this latest Supreme Court order a ‘mutha’ of a judgment. There is in its quality, its tenor, a feeling that Justice Shiranee Tilakawardena especially in her obiter dicta is laying down general rules of behaviour for politicians, businessmen, and generally people of wealth and power. There is a character in this judgment that undoubtedly makes it a Tilakawardena masterpiece. A judgment agreed to by Chief Justice Sarath Silva and Justice P.A. Ratnayake as part of the three member bench.
For a man such as President Mahendra Percival Rajapakse, whose brothers Gotabaya, Chamal and Basil are Defence Secretary, Aviation Minister and Senior Presidential Advisor respectively, who together control 80 percent of this country’s Treasury funds, to a man who has been able to employ over 130 of his relatives in various public office since his ascension to power, the sentence in the judgment which states ‘public power is not for personal gain or favour, but always to be used to optimise the benefit of the people,’ may jar a little.
No lusty applause
The following sentences, ‘to do otherwise would be to betray the trust reposed by the people within whom, in terms of the constitution, the sovereignty reposes. And thus power exercised contrary to the Public Trust Doctrine would be an abuse of power and in contravention of the Rule of Law,’ may fail to draw lusty applause from the Rajapakse camp.
The judgment striking a blow to the public sector also states that there is an abdication of responsibility to act ‘reasonably and in good faith and upon the lawful and relevant grounds of public interest,’ and such abdication has become ‘a hallmark of Sri Lanka’s governmental bureaucracy, and that the state must in the public interest expect high standards of efficiency and service from public officers in their dealings with the administration and the public.
Former President Kumaratunga however, in her submissions to court had denied there was abuse of power on her part and said that due process was followed with regard to the grant of the land. Neither had she at any time pleaded immunity, a fact the court acknowledged.
Root out corruption
The judgment however seeks to strengthen and root out corruption in the public sector and strives one believes, to set the fundamentals right. Perchance this was the reason that even in the LMSL case it was for the top Treasury official P.B. Jayasundera’s jugular rather than for the throats of erstwhile politicians that the SC went. The thinking it would seem is that if the administrative and executive wheels are squeaky clean then corrupt politicians will find it hard to bend upright public officials who will have the spine and the integrity to stand up to them.
And it would also seem that in this quest to infuse this country with decency the Supreme Court attempts to use a multi pronged approach of taking severe action against errant public officials, whittling down executive power and pressuring the Bribery Commission into action by legal directives in built into judgments as in this case and in the LMSL case.
BOI on the dock
But this judgment also takes a heavy swipe at the Board of Investment charging it with a grave responsibility under the Public Trust Doctrine.
The judgment refers to nine pieces of concession related correspondence between the parties leading up to the BOI agreement that provided Asia Pacific with a whopping 12 year tax holiday.
The BOI did not evince any evidence that it had investigated the creditworthiness or managerial competency of the shareholders or whether the ‘foreign investor’ – a Japanese individual – (that provided the foreign investor motif necessary for BOI concessions) even existed, the court holds.
The BOI the SC observes granted approval within two months of the application for BOI status despite the application failing to contain any concrete financial or independent references of the collaborators. The BOI could not have possibly performed the due diligence required for a prudent determination of project feasibility.
Undercapitalised
The court also holds that the BOI "Effectively allowed an otherwise entirely undercapitalised company to obtain significant tax concessions only available to highly capitalised projects..." The BOI the judgment states approved downward adjustments in concessionary offerings to Asia Pacific without holding a shred of knowledge as to the actual or likelihood of capitalisation of the company and the project," the judgement states. This, the SC holds is a clear violation of Public Trust.
The court in this instance observes that the actions of the UDA and BOI are not a series of otherwise unintended missteps but a part of a larger agenda to successfully consummate the transaction in spite of a procedural process that if properly executed would have prevented it.
Lessons for Mihin
And it is here again that a lesson lies for the Mihin Lanka project. It was in fact Gotabaya Rajapakse himself who signed the BOI application as chairman of Mihin. The application for BOI concessions was made projecting an investment of billions of rupees. The application did not take BOI two months but rather 24 hours to approve.
Another shareholder of Mihin, the much impugned PBJ was once to tell this newspaper he knew nothing about airlines. It shows. He was a founder shareholder of the Mihin disaster, he under negotiated the Emirates privatisation in 1998 as Treasury chief and up until last week hung on to his chairmanship of the ailing SriLankan Airlines the Emirates left in disgust.
Failed deal
That Mihin is now a failed project with over a three billion rupee loss to its name with even the government admitting it mismanaged the budget airline is old news. Following this judgment if we were Mihin shareholders we’d call our lawyers.
It is unlikely surely that anyone will see the actions of the People’s Bank, the Bank of Ceylon, The Lankaputra Bank and the Treasury as it sunk money into Mihin, and the actions of the BOI and the cabinet as it approved transaction after transaction, as a series of unintended missteps either.
And the BOI under the present Chairman Dhammika Perera must look sharp as well. It has a responsibility to investigate and conduct due diligence before it rubber stamps projects emanating from the Rajapakse quarters.
Immunity
But perhaps the most significant aspect of this dynamite judgment is that it whittles down the powers of the presidency.
No unlimited power
(1) The judgment states that ‘no single position or office created by the constitution has unlimited power and the constitution itself circumscribes the scope and ambit of even the power vested in the President.’
One may expect Rajapakse to jump from his seat as if pricked in the rear by a bradawl.
No free lunch
(2) Nothing comes free least of all power. The SC states the constitution confers extensive executive powers in exchange that he/she would faithfully perform the duties as per the oath to the best of his ability, to follow the rule of law and keeping in mind always the public trust doctrine.
Ditto for a minister. Especially a minister who is self appointed using the power of the Presidency, like Kumaratunga was and Rajapakse is — both Minister of Finance and Defence.
The court goes further than that. The executive power of the people is held in trust and acquired through the sovereignty of the people, it says. ‘While the exercise of Presidential power is a duty that must accord with the Rule of Law, such compliance should also come from one’s own conscience and sense of integrity as owed to its people.’
Limited by moral law
(3) Therefore the executive powers are not only circumscribed by the law of the land but according to the court by a higher moral law and if in violation of either or both the executive cannot claim immunity.
In this the judgment echoes the premise of the Nuremberg trials which held officers could not plead the defence of higher orders if the action was so base it went against moral law.
Limited by tenets of constitution
(4) The judgment also states "Being a creature of the constitution, the president’s powers in effecting action of the government or of state officers necessarily limited to effecting action by them that accords with the constitution."
But then the judgment explains this in bold letters. "In other words, the President does not have the power to shield, protect or coerce the action of state officials or agencies, when such action is against the tenets of the constitution or the Public Trust, and any such attempts on the part of the President to do so should not be followed by the officials for doing so will (i) result in their own accountability under the Public Trust Doctrine, betraying the trust of good governance reposed in them under the constitution by the people of this nation, in whom sovereignty reposes and (ii) render them sycophants unfit to uphold the dignity of public office."
Again in this paragraph are echoes of the Nuremberg doctrine and the rationale for the Supreme Court’s harsh treatment of the former Treasury Secretary in the LMSL case.
Absence no excuse
(5) But if present and future presidents think they are off the hook then former President Kumaratunga would tell them otherwise through bitter experience. The court while pruning the executive presidency on the one hand does not in anyway diminish its huge responsibility towards its people.
CBK as part of her plea of propriety at one point in her submissions blames the issuance of the cabinet memorandum approving the construction of villas and apartments as an action taken while she was out of the country and as a result of the shift of government control to the UNF in 2001.
The SC was to have none of it. The assertion of powerlessness by Kumaratunga the court called unbecoming and stated, ‘belies the inordinate constitutional power held by the President as head of the cabinet.’
Therefore the executive president cannot divest himself of responsibility even if parliament was controlled by a party other than his own and even if he were absent at the time.
Present and future presidents beware
(6) The judgment now states as follows and indeed it is this part of the judgment that is crucial to the incumbent President.
"Furthermore although no attempt was made by the First Respondent (CBK) to argue such point, we take opportunity to emphatically note that the constitutional immunity preventing actions being instituted against an incumbent president cannot indefinitely shield those who serve a president from punishment for violations made while in office and as such should not be a motivating factor for presidents – present and future – to engage in corrupt practices or in abuse of their legitimate powers.
"That the president like all other members of the citizenry, is subject to the Rule of Law, and consequently subject to the jurisdiction of the courts, is made crystal clear by a plain reading of the constriction…. Such a conclusion is unequivocal. To hold otherwise would suggest that the president is, in essence, above the law and beyond reach of its restrictions. Such a monarchical /dictatorial position is at variance with (i) the democratic socialist republic that the preamble of the constitution defines Sri Lanka to be and (ii) the spirit implicit in the constitution that sovereignty reposes in the people and not in any single person."
While this passage is self explanatory it also shows that an executive president is not immune from action for his official acts which may be the subject of litigation once his term is over.
Fine as lesson
(7) Even in imposing the fine on the former president the judgment states it does so to remind present and future state actors (read executive presidents) and agencies (1) of their paramount duty to further the public trust and (2) their actions are subject to the Rule of Law.
The judgment sends a message to private actors who like in the golf course case and earlier in the LMSL case make use of government corruption to procure special and unfair benefit and by doing so mutate the playing field and deprive the citizenry of their fundamental right to equality.
Review
In the light of this judgment Rajapakse would do well to seek legal counsel on many of his hair brained projects but also review the proposed ambitious Mass Rapid Transit System (MRT) project handed over to an Indian company on an unsolicited proposal, while the same Indian company had been simultaneously gifted two and a half acres of state land near The Water’s Edge in Battaramulla to construct a massive 60 storey tower for summa. A matter already exposed by this newspaper in 2007.
The land worth well over Rs. 900 million even at a modest estimate has been assigned to the Indian company on June 22, 2007 even before being officially valued in order to put up a massive commercial complex that would largely benefit the developer. The BOI signed the agreement for the new 60 storey building with NEB Rapid Infrastructure Projects Pvt. Limited of Bangalore, India.
-From Sunday Leader -20081012
Some parts are removed randomly due to space limitations.
Read full article at http://www.thesundayleader.lk/20081012/spotlight.htm
