By Chandra Jayaratne –
The doctrine “Fraud on a Power” (also known as “improper purpose” doctrine) was one of the key fundamental building blocks in framing the potential charges in a high profile suspected corruption and money laundering case investigated under the ‘Yahapalanaya’ regime. This investigation was assisted, by a set of independent professionals acting as authorized independent volunteers. It appears that the prosecutors of the Attorney General’s department make limited use of the concepts of “Fraud on a Power”. The pigeon holed investigation report delved in to the real issues that should be pursed in a purported corruption and money laundering investigation; and in addition dealt with the failures in governance, failures of fiduciary duty, lack of professionalism, transparency, accountability, oppression and mismanagement and even willful misrepresentation. These findings regrettably had not been covered even in a specially appointed Commission of Inquiry, which cost the state coffers millions of rupees. More regrettably, the report under reference lies in many a cubby hole of the leading investigators and prosecutors, without essential follow up action; nor are these findings even being used to develop ‘lessons in good governance’, whereby similar actions can be prevented from being repeated in the future in any state entity.
Article 3 of our Constitution states “In the Republic of Sri Lanka, sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise” whilst Article 4 inter alia states “The Sovereignty of the people shall be exercised and enjoyed in the following manner: the executive power of the people, including the defense of Sri Lanka, shall be exercised by the President of the Republic elected by the people;” It is thus evident that the President, the Cabinet and the duly appointed Secretaries of the Ministries, empowered with Executive Power by the Constitution must exercise such power for the benefit of the people; and are whilst holding such office and executing such power are committed to act as Trustees of the Sovereign People.
With reference to “Fraud on a Power”, Lord Parker in Vatcher v Paul judgment stated “ ….. the power has been exercised for a purpose, or with an intention, beyond the scope of or not justified by the instrument creating the power”. In British Airways Plc case, Morgan J referred to this doctrine as “Abuse of Power” and went on to state “the purpose for which the power is conferred is necessarily a matter of construction and inference from the surrounding circumstances”. In Pitt v Holt, Lord Walker distinguished “Fraud on a Power” in two ways in which trustees exercising a power may go wrong. The first, “excessive execution” is where the trustee acts outside the scope of the authority conferred and the second is where the trustee acting within the scope of the authority, but in a manner which amounts to a breach of trust which is “sufficiently serious as to amount to a breach of fiduciary duty”. The second included instances, where the trustee exercised a power within the authority, but in such a way as to be guilty of “inadequate deliberation”, that is, “failing to take relevant considerations or taking account of irrelevant considerations”. The first instance of excessive execution makes the transaction void and in the second instances transactions are voidable. Trustees misbehaving with their power and where they act on considerations for their own or their family personal benefit or for the benefit of any other third party, outside the interests of the effective beneficiaries are definitely voidable acts and can in some instances be even void ab-initio. In Cloutte v Storey, Farwell LJ held stated that the exercise of power for an improper purpose is void and not merely voidable.
The readers of this article are kindly requested to review the following facts as narrated and assess, firstly whether the facts as set out as purportedly connected with the “Pandemic related Vaccinations Management” in Sri Lanka are accurate. Provided the purported case studies as noted below are factual and can be validated by evidence, the readers are requested to assess whether these actions tantamount to those in governance, including those directly involved and those in the apex of Governance under “Command Responsibility Principles” are guilty of;
* The violation of the Constitution and impacting on the Citizens Fundamental Rights to Life, Freedoms, Justice, Equity and Equality;
* The violation of any of the International Conventions to which Sri Lanka is a signatory and which have validation by local laws;
* The violation of International Humanitarian Law and connected Jurisprudence, including joint Criminal Enterprise and Command Responsibility;
* Any offenses under the Criminal Procedure Code;
* Criminal Negligence and or Failure to Avoid Disasters;
* Policy/Priority Corruption, Administrative Corruption and / or Financial Corruption and /or offenses under Bribery Act Section 70 dealing with Corruption.
It is also up to the readers to assess whether the undernoted purported events as listed below as Case Studies developed from purported information, media exposes and narrations by connected parties demonstrate and support the possibility that the vaccinations management and administration are tainted by bad intents, “power having been exercised for a purpose, or with an intention, going beyond the scope of or not justified by the instrument creating the power (ie. The Constitution)”, “Abuse of Power”, “inadequate deliberation” and/or “failing to take relevant considerations or taking account of irrelevant considerations”, “acting on considerations for their own or their family personal benefit or for the benefit of any other third parties, outside the interests of the effective beneficiaries”, “misbehaving with their power” and “is sufficiently serious as to amount to a breach of fiduciary duty” and thus tantamount to “Fraud on a Power”:
Case Study 1
1. Frustrating several attempts by leading Business Associations and Chambers, at no cost to the state, in accessing vaccines for their staff, whose well being was considered essential for the production operations and long term competitiveness and thus keep value addition to the economy uninterrupted ( Refer Separate Case study below) and
2.In the process of such frustration the State loosing the opportunity to receive at no cost a significant number of vaccines to be administered to the common citizens;
3. Not allowing the already established private sector agents of the vaccine manufacturers from actively engaging and enriching the procurement process, whether such procurements be by the State or as a part of a private sector business initiatives
Case Study 2
1. The Failure to make timely strategic decisions related to guarantee required supplies in a phased out manner and ensure procurement processes and supply chain management plans executed with effective risk mitigation
2. The failure to have in place a priority list in the administration of the limited stocks of vaccines
3. Failure to transparently and with integrity administer the vaccines, strictly in line with the agreed priority
4. Ensuring, where two doses of the vaccine are essential for effective risk mitigation, that adequate stocks are maintained for administration of both doses to the covered participants, within the recommended time gap
5. The validity of the opinion publicly promoted by Health Officials of the Ministry that it is better to give one dose to many participants as against the required two doses and also attempt to stretch the number of vaccinations from a vaccine vial from 9-10 by administering 11 or above vaccines
6. The GMOA submission of 1st June titled “Strategic Interventions towards achieving optimal control of Covid 19 in Sri Lanka” identifying the immediate need to restructure the Epidemiology Unit, ensure effective oversight and initiate an audit in to all activities connected with the vaccinations administration
7. A fully functional vaccine registration, administration, and management system developed by the State entity Information and Communications Technology Agency (ICTA), purportedly lying dormant awaiting formal authorization by the Health Authorities for formal launch. This purported reluctance to launch the system is despite clear understanding that if such a systems was in place, good governance, better transparency and operational and decision making integrity would have been assured with the optimization of economy, efficiency and effectiveness of the vaccinations management process
Case Study 3
Whereas the Apparel Exporters and the Apparel Industry as a whole and the sector Country Ratings being internationally assessed by Importers based on “ON TIME DELIVERY” (OTD); and Sri Lanka in 2020 having had OTD of around 60% vs Bangladesh 98%; and Sri Lanka’s Exports in 2020 significantly declining vs Bangladesh showing a 5 % growth within a highly restricted market, the Joint Apparel Association Forum Sri Lanka (JAAFSL), recognizing that despite 2020 low market performance as against competitors and yet having the Order Book for 2021 full by December 2020; and realizing that staff availability, their health and ability to function in the Covid impacted environment was a key driver of competitiveness is purported to have approached the Government in January 2021, with the under noted proposal:
* The JAAFSL offers to fund at its cost, with an outlay of USD 20 mln, against a secured and confirmed order negotiated via local agents for WHO accredited vaccines at 3 $ each per vial, sufficient to cover approximately 6. 7 million vaccinations of which 0.7 million doses would be retained by JAAFSL for the 2 does each of the 350,000 apparel workers, with the balance handed over to the government for use to vaccinate common citizens, and
* This offer by JAAFSL is purported to have been topped up by the Ceylon Chamber of Commerce (CCC) with an offer to provide funding of up to an additional USD 30 mln, and
* With the total pool of funds garnered by JAAFSL and CCC, the order could have been made out to support at the offered price per jab of USD 3 to vaccinate 16. 7 mln jabs in total, and regrettably
* The State is purported to have not approved this initiative, stating that the State will be the sole importer of the vaccinations
Case Study 4
The Public expose already in the social media and other media that Bangladesh Government Order for Sinopharm vaccinations are at USD 5 per vial less than the price at which Sri Lanka is procuring the same vaccination direct from the same source of supply in China and that similar reduced charge procurements have purportedly been made by Pakistan too
Case Study 5
The media / social media expose of the adhoc nature and selective manner of vaccine administration; reporting that unannounced administrations are taking place at unusual locations; and in some instances purportedly even being unauthorized and totally outside of the announced priority of administration being; thus clearly evidencing the by passing of equity and principles of priority in the application of the second dose of the Vaccinations
Case Study 6
The Media reporting that in some instances, those receiving the first dose of the vaccine were forced to sign a declaration prior to such administration affirming that that they are not insisting on the second dose of the same vaccine being administered to them as a prerequisite.
The report of the International Tribunal for a post-event global actions review in dealing with the pandemic, headed by the former lady president of Liberia and former lady PM of New Zealand has recommended inter alia the creation of a global mechanism to be adopted in similar situations; withsuch mechanism taking charge of action accountability for global good; and be in readiness to action them anywhere in the world, in the event any of the countries, their leaders and global institutions fail to take the best option strategic action. Does this recommendation, which comes from the highlighted failures of timely strategic information sharing, lack of urgent strategic actions, lack of a single mined agreed action plan with focus on prevention and contingency plan, all resulting in implementation delays and failures to align the global leadership to such a path, culminate in placing the blame on WHO, China, US, G7 the and possibly even the UN and its other agencies?In such a backdrop, can National leaders who failed their people in the current pandemic like Presidents Trump, Bolsanaro (now on trial by the Senate of Brazil) . Philippines President and Premier Modi and others, be charged under International Humanitarian Laws and associated Jurisprudence or under Public Interest Litigation, for failure to avoid disaster within the principles of command responsibility?
Should caring intellectual elders of society form themselves in to a Peoples Commission of Inquiry and conduct a post audit of the vaccinations management, seek the citizens assessments and suggestions and determine the weak links in the administration this time round and develop a local mechanism to be adopted in similar situations in the future and place such recommendations before the citizens and those in governance.