16 May, 2022

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Can Judicial Activism Encourage Enhanced Governance Accountability?

By Chandra Jayaratne

Chandra Jayaratne

Business, media, civil society and citizens in unison lament today that the public services accountability for good governance is far below international best practice standards; and even well below the levels seen 3 to 4 decades ago in Sri Lanka. A majority of the public servants of the current generation regrettably fail to demonstrate and live up to the expectations of society as ‘servants of the public’. They consistently fail to demonstrate unwavering commitment to serve the citizens with care, adhering to expected standards of quality, efficiency and service excellence. Importantly a majority also fail to demonstrate essential qualities of equality, integrity, professionalism, non-discrimination and independence in decision making, following best practices of administrative conduct and ethics. In most instances they are either guided by political directives, third party influences and personal interests, instead of acting with independence in the best interests of the citizens and the country as a whole.

With the Audit Services Commission with powers of imposition of surcharges on public servants being disbanded following the adoption of the 20th Amendment, the politicization of the operations of the parliamentary oversight committees, public services commission and other independent oversight bodies and failures to impose unbiased disciplinary action on those in deficit of standards in AR’s and FR’s, in a context where the Presidential Secretariat and Finance Ministry too ignores the paramount need to assure financial discipline and long term socio economic justifications based resource allocations and spends, all options in exerting pressure on the public servants to perform within a framework good governance remains totally compromised.

One option to rein in errant public servants, who carry out unprofessional, irrational, egoistic, illegal and or unethical directives in governance, which the public servants are well aware will lead to losses to the state, business, and citizens, is by effectively leveraging the provisions of the Bribery Act, under section 70 – Corruption. This section reads as;

70 – Any public servant who, with intent, to cause wrongful or unlawful loss to the Government, or to confer a wrongful or unlawful benefit, favour or advantage on himself or any person, or with knowledge, that any wrongful or unlawful loss will be caused to any person or to the Government, or that any wrongful or unlawful benefit, favour or advantage will be conferred on any person –

(a) does, or forbears to do, any act, which he is empowered to do by virtue of his office as a public servant;

(b) induces any other public servant to perform, or refrain from performing, any act, which such other public servant is empowered to do by virtue of his office as a public servant;

(c) uses any information coming to his knowledge by virtue of his office as a public servant;

(d) participates in the making of any decision by virtue of his office as a public servant;

e) induces any other person, by the use, whether directly or indirectly, of his office as such public servant to perform, or refrain from performing, any act,

shall be guilty of the offence of corruption and shall upon summary trial and conviction by a Magistrate be liable to imprisonment for a term not exceeding ten years or to a fine not exceeding one hundred thousand rupees or to both such imprisonment and fine.

Thus any public servant who, with intent, to cause wrongful or unlawful loss to the government or with knowledge, that any wrongful or unlawful loss will be caused to any person or to the Government, does, or forbears to do, any act, which he is empowered to do by virtue of his office as a public servant; or induces any other public servant to perform, or refrain from performing, any act, which such other public servant is empowered to do by virtue of his office as a public servant; or participates in the making of any decision by virtue of his office as a public servant; or induces any other person, by the use, whether directly or indirectly, of his office as such public servant to perform, or refrain from performing, any act, shall be guilty of the offence of corruption.

The limbs of the relevant section highlighted above expresses a determination that an offence of corruption is deemed to have been committed even in instances where a public servant or any other person have not personally benefitted from any official decision making or act carried out or directed to be carried out, where there is intent (mens rea – the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.) and there is knowledge, that any wrongful or unlawful loss will be caused to any person or to the Government.

Sunday Times Business of 30th January reports that “Massive loss from SL’s hasty shift to organic farming” – “Sri Lanka’s unplanned shift to organic farming from chemical based agriculture practices has triggered a man-made crop disaster and incurred a massive loss of around US$1.04 billion, official provisional estimates and data of trading economic indicator models showed”.

In the above context, where any public servants in the knowledge that massive losses could be caused to the government, farmers and even the citizens as a whole, by adopting a policy of organic agriculture only, without due notice and long term preparatory actions, and yet participated in the implementation of the said policy; and where they knowingly participated in such wrongful decision making, implementing and getting other public servants to engage in the implementation process may be guilty of corruption in terms of the provisions of section 70.

The above interpretation must be validated in the context that the policy was announced and implemented and yet continues to be in place, despite severe objections, protests and advocacy from the very inception, by many in state and private sectors leaders, as well as academia and professionals. The concerned public servants ignored the best professional advice of competent persons (both local and international), despite such advisors being experts in their field of science and practice. Further these public servants ignored the available best scientific evidence and also experiences from other territories supported by well documented case studies.

Would such arrogant, irresponsible, unscientific and unprofessional decision making, followed by implementation and enforcement action, disregarding all available evidence and advocacy not be sufficient ground in establishing and proving before a court, both the intent to cause wrongful loss by the public servants concerned who were well endowed with knowledge that a loss may be caused by such action as predicted by many experts in the field and widely publicized over the media. Thus with the required ‘mens rea’ and ‘knowledge of the loss’ being present, will the public servants connected not have engaged in an acts of corruption in terms of section 70, especially where the losses have been since established and the amount of such losses are significant and the negative impacts widespread, having affected a majority in society.

The action steps leading such a policy being implemented was not merely a reckless policy decision, as it was articulated both publicly locally and in international forums as a key strategic competitive advantage seeking national policy action. Public servants concerned outright rejected and ignored the best scientific advice of competent persons even within the public service responsible for tendering best advice to the superiors? In the light of available evidence there could be sufficient evidence to indict the public servants connected with this debacle.

If the above interpretation has some validity, should not the impacted farmers, businesses and small and medium entrepreneurs directly and the citizens impacted indirectly by the food shortages, steeply increased prices and lower quality agricultural products in the market not complain to the Bribery Commission. If the Bribery Commission fails to act on these complaints, could activists arrange to seek a writ to compel such investigation and action, in the context of an impending national crisis; further can they demand that the public servants who by their decision making and other implementation actions caused the crisis be held accountable for having failed in governance to take decisions and implement policies where from the very inception likely massive losses could have been anticipated as a certainty.

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Latest comments

  • 3
    0

    “In most instances they are either guided by political directives, third party influences and personal interests, instead of acting with independence in the best interests of the citizens and the country as a whole.”
    Dear Chandra Jayaratne,
    The majority of the current civil servants failure in caring for the public is closely associated with accumulated over the time with the cultural change with the introduction of violent racism and fundamentalism. For example when the Tamil MPs had a protest Satyagraha in front of Parliament the government ordered military to use violence against protestors. When this action was directed by politicians, officers have no alternative other than to use violence even though that was illegal or unlawful. In 1958, when during the Riots or violence against Tamil civilians by thugs, the government did not ask to stop the violence and the military just observed when people are burnt on the streets. When the Jaffna library was burnt it was under the directive of government ministers and it was carried out by police (Government servants) and they were given promotion as well. This culture spread across the country and most of the current public servants are now use this in common life without any fear because politicians are also involved in corruption.

  • 2
    6

    “Can Judicial Activism Encourage Enhanced Governance Accountability?”

    Why? Why can’t it happen ………. Lanka, after all is a Buddhist country!


    Most of you guys are still stuck in ancient 2500 years back Buddha’s time ……….

    Buddha was an ultra-modern then and he is an ultra-modern now ……… He’s on TikTok ……….

    Spoke to him on TikTok, last night ………… asked me to pass on a simple request to his Lankan disciples ………..

    He said, if it’s difficult for you to follow his teachings and refrain, not to worry about lying, cheating, robbing, looting, murdering, serial-killing ……… first, just to start with simple things ……….

    He said, “For Christ’s sake man, ask them to drive on the left-side of the road; then I’ll know they are my disciples and Lanka is a Buddhist country.”

    For EE and others, who might get confused, he asked to remind them ………… the steering wheel is on the right-side …….. you drive on the left-side.


    I’m absolved ……. the country I live in, require one to drive on the right-side ………..

    I feel a better Buddhist even without trying! …………… Some guys have all the luck!!

    What’s the %, Native? ………… 99.9999999 + 1% ?

  • 0
    2

    For Christ’s sake man, ask them to drive on the left-side
    I know you always support Chandra Jeyaratne’s communism and Prof Kumar’s socialism. That is why you like Lankaweyans to be on the left. Anyway, did Buddha mean the side that is le (f)t free without vehicle congestion. I am not a Buddhist, still that is what I do in New York. Ok, let’s get serious. What I do if the train comes and hits me when I drive on the left. How many times in the week the Tamil media is saying that the train hit those on the railway crossing? So far, there are more than 10,000 large animals killed on the wild highway (Southern). Many thousand birds were killed in the Airport of Matale. Buddha, who talked about the donkeys driving on the right (or wrong) side of the road and dying, did he talk about which side is allocated for these animals and bids to save them? I believe this is not the mistake of Buddha’s failure to advise in time, but the Colonialists who started the curse called “Universal Franchise”, in 1931. That is time all the donkeys on the land were elevated to the Kings and Queens of the SinhaLE Wildlife Sanctuary. That’s when all these problems started and now all are driving crazy everyone else.

  • 1
    0

    At times I wonder if a deal was cut for the AG to become the Chief Justice he or she has to learn how to give the verdict or orchestrate the verdict “nidos kota nidahas”. This CJ may get the Guinness Book of World Records title for most “nidos kota nidahas for politicians” decisions during his tenure.

  • 3
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    I am at a total loss to understand what Chandra Jayaratne really wants us to believe! Whether he wants to fool us or whether to imply us that he is an utter fool? I am not too sure because reading most of his articles over the past few months I got a strong feeling that either he does not live in this world or walking on earth! In a country infested with massive amount of corruption, racism instigated by monks and politicians who follow fake Buddhism, what can he expect other than what it is today? Doesn’t he know that independent civil service was gone for a sixer in 1972 when Sirima abolished the independent Public Service Commission?? Since then ALL governments ruined the public service? Is Chandra a baby not to know that obvious fact?? Why expect a clean slate in a stinking, rotten maggot infested drain?? Surely, he must be old enough to know all those facts!

    • 3
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      Dear Jit,
      While endorsing the comments, I would add that at the current level of the justice system, judicial activism is meaningless and getting a verdict in favour is remote. Even judicial review has been restricted for just weeks. This is to discourage review. Further to expect even simple justice from the likes of Totawatte etc, is asking for the moon. See how Basil was acquitted without trial.
      Then of course the connivance of the AG in these shenanigans is adding to our woes.

      • 2
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        What is needed most is, as a first step, getting back to 19A with some further changes to the betterment by fine tuning the membership of the Independent Commissions and their scope. Same with Constitutional Council and set up a Constitutional Court with judicial review for up to five years. This will help us to move forward.

    • 1
      3

      ” Chandra a baby? ”
      No, he is matured, and partner of Royal Monarchies. He is arrogant, racist and hypocritical to recognize any reality. In none of his articles he questioned the $18B. Chandra is a clueless accountant, has no idea how bond market and share market make profits. He was one of the biggest activists to bring back Mahendran and punish for CB theft, only because Mahendran was a Tamil. New King said his his Chaitanya administration robed 1000 more than what Yahapalanaya robbed. After New King’s accusation on his previous administration, Ranil specifically ordered Mahendran not to re-audit old CB records. Then Mahendran told the auditors stop auditing Chitanta government robberies (that is where the part of the $18B sits). That is how all the head thieves escaped. At the end of the CB robberies investigations only a few Tamil clerks of CB were punished. You know, Langkang courts judicial activists throw out the girl who took a coconut to pay school fee and was thrown 8 years in prison; another official who accepted Rs 20,000 was thrown for 20 years. Further Chandra has no capacity to understand what bribery act is & what is constitution. The constitution only says that “Krukkal Kusuvinaal Kutramillai”. (If the priest farts, it doesn’t smell). Have ever seen Accountant Chandra’s judicial activism on fixing the constitution?

  • 3
    0

    Dear Chandra

    “Would such arrogant, irresponsible, unscientific and unprofessional decision making, followed by implementation and enforcement…..”

    Anything is possible . The sheer arrogance on the part of the executive is unprecedented in the annals of Sri-Lankan politics
    .
    Our civil service must be the most inefficient in the whole globe.
    There has never been accountability at any level. From the office messenger to the PPS. And the STATE OWNED ENTTERPRICES IS ANOTHER
    DINOSAUR

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