The Supreme Court said that it cannot intervene against the Government policy although the duty free vehicle permit scheme had been abused by certain elements holding public office.
When the Writ Application filed in the Supreme Court against the powerless Corruption Commission came up for support on the August 06 before the Supreme Court, the Counsel and the Petitioner in the case, Nagananda Kodituwakku, made a strong submission about total failure of all organs of the government, the Legislature, the Executive and the Judiciary, to observe and uphold the Rule of Law.
This case was about the abuse of tax-free permits for unjust enrichment by those who holds public office of Cabinet of Ministers and Lawmakers, where the permits had been issued under the Customs Law (Section 19A) by the Minister of Finance in the public interest to import luxury vehicles free from fiscal levies enabling them to use such vehicles to discharge their office effectively. The Counsel submitted to Court that no public interest whatsoever served when the Ministers and the Parliamentarians were allowed sell their permits in the open market, misappropriating a substantial proportion of the tax revenue defrauded by selling the permit, letting wealthy business community, and in some cases drug dealer to import luxury vehicles on such permits free of fiscal levies, whereas a poor man who imports a 650 cc Maruti car is forced to pay a sum of over 1.5 million rupees as fiscal levies to the government.
It was further submitted to the Court that there is not even a single diesel driven luxury vehicle running on the road which had imported on payment of fiscal levies at the rate of 300% and all such vehicles have been imported abusing the tax free permit scheme by wealthy business community, and therefore the Court is under duty to ensure that Rule of Law is enforced against this abuse.
It was submitted that defrauding the tax revenue in this manner, defrauding hundreds of millions of tax revenue, was a criminal offence that falls well within Section 70 of the Bribery Act and therefore the Corruption Commission was under duty to inquire into a plausible complaint made about this scam by the Petitioner-Counsel. Yet the Corruption Commission that function under the Executive, had refused to carryout a formal investigation into this abuse, on the basis that although the government had incurred a loss, as the said loss had been resulted by the government’s own policy, of which the Commission cannot inquire into.
Informing the Court that Corruption Commission is an arm of the executive and therefore if it had failed to inquire into the abuse of tax free permits, being the Watchdog of the people that exercises people’s Judicial power on a social contract entered with people purely on trust, the Court was under duty to ensure that all organs of the government observe and uphold the Rule of Law, including the Judiciary, as they exercise the inalienable sovereign power of the people on trust under the supreme law of the land, the Constitution.
The Counsel submitted that since independence, the sovereign power of the people has been ruthlessly abused and the people have been betrayed by the fraudster elements, who had held public office in the executive and the legislature. Therefore the Judiciary as the watchdog for the people is required by Article 105 of the Constitution to uphold, vindicate and protect people’s judicial power and to ensure that Rule of Law is enforced appropriately against those holds public office in other organs of the government such as the executive and the legislature. And in the event any person holding public office had betrayed the people and had violated the social contract entered with people to perform their public office as required by law; not to abuse the public office to embezzle public funds by resorting to adopt unlawful means.
Citing examples from other parts of the world, where people’s sovereign rights are respected and honoured by the Judiciary with wrongdoers who held public office had been duly dealt with according to law, the Petitioner-Counsel requested the Court to administer the people’s judicial power strictly and decisively according to law against corrupt elements elected as members to the legislature and appointed as the Cabinet of Ministers who has abused their office for unjust enrichment.
However, the having heard the submission made by the Petitioner-Counsel, Nagananda Kodituwakku, and the Attorney General, the Court held that it cannot intervene against the Government policy although the permit scheme had been abused by certain elements holding public office. Therefore the Court refused to issue Notice on the Corruption Commission and the application seeking a Writ of Mandamus was refused without Costs.