By R.M.B Senanayake –
R.M.B. Senanayake
Are there adequate laws to hold the Ex-President and Ministers accountable for financial malpractices
Although there is much hype about corruption and the need to bring to book the corrupt Ministers, the Ex-President and his family; under what laws can they be financially accountable? In the case of fraud or embezzlement of funds there is the Penal Code and the common law offences. But is there a law governing or regulating financial management or financial accountability in the State?
The prevailing Financial Regulations are those coming down from colonial times when the scope of government was much less and where the power to spend money was entirely with the Secretaries (called Permanent Secretaries then). They were designated the Chief Accounting Officers of the Ministries which constituted a cluster of departments engaged in closely related functions. The Heads of the Departments were designated as Accounting Officers for their departments. The Ministers were not referred to in the Financial Regulations. The financial powers which included the decisions to buy goods and services and award contracts were vested only with Secretaries and Heads of Departments. They were expected to call for competitive tenders’ or quotations before making any purchases of goods or services. The tender procedure required them to select the best tenderer. These officials were permanent officials of the public service, selected on merit and not political appointments by the President or the Minister. So they had the independence to act according to the principles laid down in the Financial Regulations. The situation changed after 1956 and the constitutional changes of 1972. Effective power even in financial matters came to be exercised by the Ministers and the President instead of the Secretaries who were now their creatures. I remember once when I served in the former Ministry of Food the then Permanent Secretary K. Alvapillai writing a minute to the then Minister J.R Jayewerdene that financial matters relating to rice purchases were not his function but that of the Permanent Secretary.
But after 1972 the President and the Ministers took control of financial matters despite there being no law which gave them such powers which continued to be vested with the Permanent Secretaries and the Heads of Departments. They gave oral instructions to them which they expected them to carry out. They had to give no reasons for their directions which were always oral when the long colonial tradition was that all decisions be recorded in a file as a minute. So a situation arose where power was exercised without responsibility. The Ministers were not made responsible for the financial management of the departments under the Ministry.
The World Bank in the 1990s recommended a draft law called the Public Finance Act of 2002 fixing the responsibility on the Minister of Finance for over-all financial management including the Corporations and the Treasury was to assist him.
The draft law was not passed by the prevailing government or its successors and I believe it is in cold storage. The JVP should look into this matter and insist that the law should be passed for it lays down clearly the financial responsibility of the Ministers.
In the absence of such a law I wonder to what extent the ex-President who functioned as the Minister of Finance and the other Ministers could be held responsible and accountable for financial mismanagement, misuse of public funds and financial irregularities like the violations of tender procedures or disregarding the need for tenders altogether. The ex-President and the Ministers seem to have disregarded several Financial Regulations.
Our crisis is primarily one of first principles and the present hue and cry on corruption will not especially lend itself to holding the Ministers or the ex-President liable unless there have been embezzlement of public funds as in the case of Helping Hambantota where the funds received for tsunami relief were credited to the ex-President’s personal bank account. The actual workings of our political institutions and the propriety of their financial operations, areas are of vital importance just as the constitutional nature of the system of government- whether Executive Presidential or the Westminster system of Cabinet Government under a Prime Minister who is only the first among equals and is fully answerable to Parliament. The JVP should go into this matter in addition to reporting the undue wealth and corruption allegations to the Commission on Bribery and Corruption. It is good that the draft audit Commission law is to be passed. It is necessary to fish out the draft Public Finance Act of 2002 prepared by the World Bank and find out what happened to it
Amarasiri / January 21, 2015
R.M.B Senanayake –
RE: Corruption: Are There Adequate Laws To Hold Rajapaksa Accountable ?
May be not.
However, use the current lawa on the books to prosecute.
Crimes, it should not be a problem.
Use of state resources, should not be a problem
Corruption, stealing should not be a problem
Bribery, should not be a problem.
like Mervin Silva, Mahinda Rajapaksa Cronies will likely spill the beans..
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Sunshine / January 21, 2015
Mr Senanayake,
Under \Yaha Palanaya it looks like law and order has gone to the dogs.
A new raiding squad heades by Athuraliye Rathana thero, Arjuna Ranatuunga and the like are raiding houses, including that of the former president. The police are standing by and watching.
They have been looking for forged ballot paers, Lamborghinis and other things, but so far have found nothing.
I s it fair to say the country went to the dogs on 8 January.
They should put up or shut up about corruption and |wait for the washout of Swindler Karunaanayaka’s case.
Dogs like Amarasri Pooton have no ethics.
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dcn / January 21, 2015
Sunshine
You must be one of the cronies of the previous regime and now disappointed that the good governance has commenced. You were all used to all types of corruption, misuse of state resources, family bandism, white van, communalism, religious hatred, nepotism, etc etc. So when you see some dignity is being brought in to governance against what you are used under the previous regime you seem to finding it difficult to gulp.
Be patient, there is going to be large amount of exposures of crimes committed by the previous regime and action taken through the judicial courts (not jungle courts) and where the cases are proved the culprits punished according to law.
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Sinchuappu / January 21, 2015
Be careful the days that goons of your kind will also be raided in the days to come – ascending to end of 100 day programme. But not to the many your beloved leader did it – using free running prisoners turned mayors taking so called toy pistols. This time, it iwll be going through more human way – Arjuna has not done any harm to people becmoing those goons. SO please your wording should take its way polite if not, laws will work on it is what we have to so. THis si the most goleden opppotunity to filter the majority culprits from Sharks to sprats. This you will see, have to aceept with the time, when things would fall in favour of all and sundry of the nation.
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AlimankadaPamankada / January 21, 2015
“They should put up or shut up about corruption and |wait for the washout of Swindler Karunaanayaka’s case. “
Absolutely true. Many other swindlers apart from swindler Karunanayake of CWE Takaran fame are also holding responsible positions in the My3 govt. Old wine in new bottles?
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punchiniame / January 21, 2015
Wil Hon.Minister of Finance instruct Bank of Ceylon to change the
Schylles Branch address and outfit to Hqs. immediately whilst the MEA
closes down its Consulate there. The direct flight feasibility should
also be studied. These remedial actions will curb furthering illegal
activities?
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K.A Sumanasekera / January 22, 2015
Not even one Sinhala Buddhist in charge of the 100 Public Institutions,
35 to Ranil, 35 to Kabeer and 30 to Ravi to make them Corruption and Commission proof?.
May be the Elite, Anglican , Vella and SLMC Muslim Govt lead by our own Sira doesn’t trust any Sinhala Buddhists..
Although they got in to power with the help of the 600,000 JHU Buddhist Sinhala devotees vote.
Will Ven Rathne, Ven Sobitha and Mr Champika explain why even Sinhala Buddhist Karu, and his old Apprentice ( Golaya ) Keselwatta Kid weren’t good enough..when they hand over their nominations in April?..
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dcn / January 22, 2015
K.A. Sumanasekera
We all know you are one of MR’s cronies and now suffering from 100 day programme syndrome.
Every thing what the present regime is doing to improve the lives of the citizens are alergy to you.
Now you and your leaders only plan is to create a cummunal disturbance. Please note your efforts would not succeed as present leaders are alert . Therefore, please don’t try dirty tricks.
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Shanthi Jayaratna / January 22, 2015
Dear Mr. Senanayaka.
This reminds me of my late father (Rtd. Deputy Director of Finance at Treasury. Mr. N M Perera (when he was the Minister of Finance) did not allow my father to go home in retirement and kept him to revise FR at that time for two more years. He was in the Tender Board and was also in the very first board of the Milk Board. Still remember writing and going through the Files till late in the afternoon after coming home.
One of our Ex Presidents tested my fathers ingenuity(when he was MMC) and finally persuaded my father to accept a Volley ball (I know sir, that you have children, please don’t refuse this for them).
Yes, FR was very powerful at that time and was like bible to Government servants.
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Abe / January 22, 2015
An very enlightening piece for those like myself who have not dealt with FRs and ARs.
But why repeatedly ask the JVP to look into it and not the President or PM? Is the JVP more committed to financial probity than the other parties of the coalition?
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BBS Rep / January 22, 2015
RMBS, don’t give ideas to the thieving scoundrels that there is no law under which they could be dealt with.
The common law related to fraud is enough. We must get our money back and place deterrents in place to those who are planning to defraud the country in the future.
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drop charges / January 22, 2015
When the government changes all charges will be dropped?
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Good Sense / January 22, 2015
Talking of proper governance, it must come from one’s heart. Not all the laws in this world can put it right. The features of a good kleptocracy is the absence of proper laws or no implementation pf the law. Plundering the national economy is not an offence in this country though it is an offence say in the Phillipines.
The hall mark of a kelptocrat is to do the needful without getting caught. Therefore a post-mortem would reveal what is to be done in terms of strengthening the process rather than catching the crook and putting him behind bars. It should also reveal that the head of state should not have relatives occupying positions of prominence. Quite contrary to expectations is the brother of the highest made a chairman of a government company? Will someone enlighten me on this?
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David Perera / January 22, 2015
This has reference to Mr. R M.B. Senanayakes questions on accountability. Absolutely politicians have very little to blame for the misappropriation of public funds. I have been writing comments on the matter from the time present administration came in to power. Politicians have no access to government coffers without the consent of the public officials. You correctly stated the responsibilities of the Permanent Secretaries of the past. They were the accounting officers. Even today secretaries and Heads of department at different levels are the accounting officers for public funds and they are simply culpable for misappropriation of funds belonging to the government. This has first to be understood by everybody who are trying to find fault with only the politicians which most of people have mistaken without knowing the working of government machinery.
Since the systems have fallen up side down for centuries now present day secretaries to the president and ministry secretaries themselves have no idea what they were and are doing.
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Lasanda / January 23, 2015
The Sirisena regime with Mangala and Chandrika came with two things in mind.
Remove the powerful Rajapaksa Governtmnet and second to bow down to the western needs.
They never expected that the people will be with Rajapaksa aftter defeating him!!!!!!That’s why they are going after corruption!!!!!!
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Patriot / January 23, 2015
Bandula Jayasekara stop commenting. You will be investigated for using state money on PR company in Sydney and you are not even the bloody high commissioner. Did the PR girl appeal to you like all white women.
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Ranil Wijeyesekera / January 23, 2015
A system has to be built to reflect the grassroots aspirations of the people in policy planning and plan implementation. Grassroots reporting when the media will give coverage to reports of corruption and bribery of the officials. Files of MR should be tabled in court as it will be of all parliamentarians and e officials without considering party affiliation. The Venerable Maha Sanga is flexing its muscles and it should watch over the peoples interest.
The people should be aware of how to track corruption. Photograph and videos can give damaging evidence. Falsifying data should be punished. A format of a report should be given with alternatives. Citizens groups should be encouraged and funded.Our Masses are educated. Dedicated citizens and the Clergy can enter computer forms that can be evaluated through computer. Rewards should be offered according to recovery of funds. Amnesty with reduced punishment remind us that hatred ceaseih not by hatred , Ha trad ceasth by Love. Maithri is a key word. Maithri Buddha is coming from Heaven according to a prophey by Gautama Buddha. Jesus Christ showed Maithri and came down from Heaven incarnate man to die for our sins.
Let us not be tied up by haling. Let us cut the Gordian knot. There is a lot to do. It is heartening to note that the CJ may be encouraged to resign. Let us do all we can to rout funds dishonestly gained. Let us not get tied down to Litigation that would be never ending. From now on there should be strict accountability for use of government or private funds. Retrospective legislation and pressure on Courts to give favorable rulings should not take place.
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