The government is expected to call for a fresh tender for the supply of coal for the Lakvijaya Coal Power Plant, after the Supreme Court recently declared that the Government had ‘shocked the conscience of the Court’ due to the actions of ministry officials. The deal had reportedly resulted in the State incurring a loss of approximately Rs. 1.2 billion, which was signed during Minister Champika Ranawaka’s tenure as power and energy minister.
The statement was made by Chief Justice K. Sripavan, and supported by Supreme Court Judges P. Dep and U. Abeyraythne when Noble Resources International Pte Limited, filed a fundamental rights petition at the Supreme Court claiming that their fundamental rights were violated after a tender was awarded to another Singaporean Company, Swiss Singapore Overseas Enterprises by the Ministry of Power and Energy. Noble Resources International cited that they has provided the bid in 2015 in accordance to the guidelines and provisions of the bid document issued by the ministry.
Even though the Supreme Court dismissed the case on June 24, 2016 citing a preliminary objection raised by the respondents, comprising of 75 including Ranjith Siyambalapitiya, Minister of Power and Renewable Energy, B M S Batagoda, Secretary to the Ministry, the President, the Prime Minister, and former subject Minister Champika Ranawaka, the Court informed the respondents that it would be ‘appropriate to’ terminate the contract entered into with Swiss Singapore Overseas Enterprises Pte for the supply of Coal to the Lakvijaya Coal Power Plant after giving reasonable’ notice to the said Respondent; and to call for fresh bids in terms of the law, for the supply of Coal for the said power plant following competitive Bidding procedure.
“The Court is mindful that the fundamental rights provisions in the Constitution must be interpreted having regard to the constitutional objectives and goals and in the light of the action taken by the Governmental Authority at a given point of time. As it is essential to the maintenance of the rule of law that every organ of the State must act within the limits of its power and carry out the duty imposed upon it in accordance with the provisions of the Constitution and the law, the Court cannot close its eyes and allow the actions of the State or the Public Authority go unchecked in its operations, in the public interest. If the Petitioner with a good case is turned away, merely because he is not sufficiently affected or the Petitioner has no “locus standi” to maintain this application, that means that some Government Agency is left free to violate the law and this is not only contrary to the public interest but also violate the Rule of Law, the object of which is to protect the citizens from unlawful governmental actions,” the order said.
It added that, “It will be a travesty of justice if, having found as a fact that a fundamental right has been infringed or is threatened to be infringed, the Court yet dismisses the application on a preliminary objection raised by the Respondents. This Court has been given power to grant relief as it may deem just and equitable. The Court therefore decided to go into the merits of the case as some of the events that took place, in the award of the tender to the 22nd Respondent shocks the conscience of the Court, especially when the awarding of the tender involves “public funds.”
Earlier when the application was taken up for hearing on March 16, 2016, Mr. S. Rajaratnam , Additional Solicitor General, raised the following two preliminary objections on the ground that the Petitioner does not have locus standi to invoke the jurisdiction of this Court under Article 126 of the Constitution :
(1) That the Petitioner is a Company registered under the laws of Singapore has invoked the jurisdiction of this Court all by itself without a local agent, representative or an Attorney at Law enjoining him as a Petitioner.
(2) That the affidavit submitted in support of the Petition is from a Director of the Petitioner Company who has affirmed or sworn the affidavit in Hong Kong before the Justice of Peace based in Hong Kong for the said affidavit to be accepted as a 10 testimony before this Court without recourse to the mechanism set out in the Consular Functions Act No. 04 of 1981
The deal had reportedly resulted in the State incurring a loss of approximately Rs. 1.2 billion.