15 December, 2018

Blog

Mis-Use Of Public Funds By State Officials

By Gamini Jayaweera

Gamini Jayaweera

The appeal petitions filed by the former Presidential Secretary Mr. Lalith Weeratunge and the former Telecommunications Regulatory Commission Director General Mr. Anusha Palpita, challenging the Colombo High Court judgement of three years imprisonment in the “Sil-Redi” case is fixed for consideration on 12 October. The judgement of the “Sil-Redi” case and the announcements by the Hon. President and the Auditor General of unprecedented bribery and corruption in the public sector organisations, I feel that the time is right for us to refresh our memories about the “Sil-Redi” case and discuss the strange position that has been taken up by the government about this “cancer” which is killing our society. 

President and The Auditor General’s Accusation

The Hon. President Mr. Maithreepala Sirisena addressing a public meeting of police and anti-corruption activists held in Colombo in December 2016 said that he was regretted to inform the nation that more than 50% of Sri Lanka’s public procurement contracts were tainted by bribery and corruption. He further stated that he knew the people who were involved in this dirty business, but he was unable to reveal the names because of organised strikes by the corruptors. Strange Decision!

After nearly two years of the Hon. President’s statement about bribery and corruption by state officials, the Auditor General, Mr.Gamini Wijesinghe addressing a workshop organized by the Committee on Public Accounts (COPA) in June 2018, stated that more than half the state officials would be in jail if they were dealt in the way former Presidential Secretary, Mr. Lalith Weeratunge was dealt with and sentenced to prison on charges of misusing state funds because most of them spent funds without the approval of their superiors. It implies that no charges against the culprits. Hair-Raising Decision!

It appears that no valid reasons have been given for not taking appropriate actions against the culprits. If the Hon. President and the Auditor General have enough evidence to press charges against the alleged officials, then there is only one genuine possible explanation for not taking appropriate action by the government. It could be that in most cases the government has no intention of punishing the culprits because it may reveal the names of their close political colleagues and supporters who are involved in this dirty business. However, after nearly two years of the Hon. President’s accusation of bribery and corruption in the public sector, the Auditor General’s recent statement confirms that hardly any progress has been made to curtail the mis-use of public funds by the state officials.   

Let us examine briefly the role of the public administrators and the legal ingredients that are required to prove beyond reasonable doubt that the state officials are involved in unlawful activities knowing that their actions are deliberate breach of public duties and abuse of public trust.  

Professional Administrators

Sri Lanka Administrative Service (SLAS) consists of professional administrators who have undergone extensive training in all aspects of processes and procedures of the administrative activities of the Sri Lanka government. These experienced skilful public officers work very closely with the President, Prime Minister, and the Ministers to develop and implement policies of the government in power. The SLAS officers should be politically neutral and provide their impartial service to the government of the day, maintaining the professional integrity of the SLAS. As I understand, the Secretary to the President is the de facto head of the SLAS and all other Secretaries and officials in the service must comply with his lawful orders. It is also true to say that the Secretary to the President has a duty to comply with the lawful orders given by the President. 

Abusing the Public Trust

Misconduct and misuse of public funds by the state officials is unlawful and it is a punishable event, if found guilty. Lengthy prison sentences could be imposed by the courts for this serious offence. It is also a punishable event if the state officials carry out illegal orders given by their political masters. The well trained and experienced SLAS administrators and the other state officials should be fully aware of the consequences of such behaviour against the law of the land. The state officials are government officers who are being paid by the tax payers’ money and therefore they have a duty to perform their duties honestly and legally, for the benefit of the people in Sri Lanka.

It is well established in the other parts of the world that the following major ingredients are required to be proved beyond reasonable doubt by the prosecution for conviction of state officials for the abuse or breach of the public trust in a dishonest manner.

  • Deliberate use of authority to abuse or breach the trust of the public,
  • Deliberate breach of duty without having a reasonable excuse or justification, 
  • and the dishonest motive of the public officer 

Guilty or Not Guilty?

Based on the public statements that have been made by the Hon. President and the Auditor General it appears that they have got evidence that more than 50% of our state officials have violated the above 3 ingredients in carrying out their public duties in a vast number of public transactions. I believe that under the existing Penal Code and other relevant provisions of the Law are enough for the Auditor General to press charges against the culprits without waiting for the National Audit Bill to be passed and implemented by the parliament. Until these allegations are proved beyond reasonable doubt in a court of law we must assume that these state officials are innocent. With all due respect to the Hon. President and the Auditor General, it must be said that it is a matter for the Courts and not the Hon. President or the Auditor General to decide whether the accused state officials are guilty or not guilty. 

“Sil-Redi” Case  

It is important that we remind ourselves of the judgement made by the Colombo High Court in the “Sil-Redi” case. The Judge was satisfied that the prosecutors had successfully proven that the two accused (Mr. Lalith Weeratunge and Mr. Anusha Palpita) were guilty beyond reasonable doubt for wilful misconduct (deliberate breach of duty) in abusing the public trust with a dishonest motive. In passing his judgement, the High Court Judge had stated that the two accused had committed the offence with the intention of gaining undue advantage to a candidate in the last presidential election. 

We also could remember the concerns raised by the Former President Mr. Mahinda Rajapakse, the Joint Opposition, and some Buddhist monks questioning the fairness and the validity of the High Court judgement. Some have argued that the former Presidential Secretary had merely carried out the orders given by the former President and therefore he should not be liable for the mis-use of public funds.

A few months ago, Mr. Austin Fernando the former Secretary to the current President Mr. Maithreepala Sirisena in his farewell speech referring to Mr. Lalith Weeratunge, stated With all due respect to the judiciary, I still wonder if it is he who should have been sent to prison. Those who ordered him and the fake handers on were not to be seen on that day.”  

I have lot of admiration and respect for Mr. Austin Fernando who worked tirelessly to maintain the high standard of the civil service professionalism which appears to have almost disappeared from our public service during the last few decades. Mr. Austin Fernando has exhibited honesty, integrity, fairness, and humanity during his public service career. But I personally do not agree with the above statement made by Mr. Austin Fernando, for two reasons. 

Firstly, Mr. Lalith Weeatunge answering to questions in a recent interview with the Daily Mirror’s sister paper “Deshaya” has stated amongst other things that “He (Former President) never asked me to do anything that was wrong.” and “Certain difficult decisions were arrived at and implemented as ours. We always obliged him.”   

The above statement implies that Mr. Weeratunge was carrying out instructions given by the former President without any hesitation to please the former President. It appears that Mr. Lalith Weeratunge had failed in his duties to maintain the proper accountability for public spending because he had always obliged the former President irrespective of the instructions were legal or illegal.  

Secondly, I feel that it was up to the former Secretary (Mr. Lalith Weeratunge) to find out whether the orders given by the former President were legal or illegal. Mr. Weeratunga being a well experienced senior SLAS Officer, could not use the argument that he thought it was a legal order given by the former President. In his capacity as the Secretary to the President, he should have known that “Ignorance of the Law is not a Defence”. 

The learned judge, passing his judgement has made a humorous remark about the distribution of “Sil Redi” in December 2014. He said, “In our Society everyone knows that the distribution of Sil Redi occurs during Vesak, Poson or Esala season and it does not normally occur in the months of December/January”.  

“Nation’s Interest” Vs Justice 

It appears that the former President disagrees with the statement made by the learned Judge about the timing of the distribution of “Sil Redi”. Mr. Mahinda Rajapakse, justifying his instruction to distribute the “Sil Redi” in December/January has stated, “The sil-redi was also general state aid distributed across the board to Buddhist devotees just like the school uniforms”. The former President’s statement implies that he has issued instructions to put “nation’s (Buddhist Devotees) interest” above the law of the land by misusing public funds for supplying and distributing “Sil Redi” during the Presidential election campaign, with a label stating, “A religious offering made by Mahinda Rajapaksa in pursuance of Mahinda Chintanaya policies.”  

The Former President’s justification about his instruction to distribute “Sil Redi” in the middle of the presidential election campaign reminds me one of the political comedy quotations about the “Nation’s interest” Vs “the Justice” in the BBC book “Yes, Prime Minister: (Diary 1988 – Secretary of the Cabinet, Sir Humphrey Appleby K.C.B.) “You can’t put a nation’s interest at risk just because of some silly sentimentality about justice.” 

Conclusion

As public servants at the highest level, the Hon. President and the Auditor General should not turn a blind eye to encourage the dishonest public servants to continue with their illegal dealings to plunder the public funds. If the accused state officials have conducted state transaction in a comparable manner to the “Sil-Redi” case the law abiding people in Sri Lanka expect the Hon. President and the Auditor General to publish the facts and figures and use the existing Penal Code or other relevant provisions of the Law to press charges against these state officials for wilful misconduct (deliberate breach of duty) in abusing the public trust with a dishonest motive. It will most definitely give a clear warning to the state officials that they should pay attention to the judgement of the Colombo High Court to avoid such disgraceful behaviour in the future.  

  We are aware that there has been a long-drawn opposition to the proposed National Audit Bill by certain politicians and public sector officials. It appears that some powerful politicians and state officials in high places are dead set against a robust public account auditing regime that would bring to book the notorious politico-bureaucracy collusion. However, recently the National Audit Bill has been passed in the parliament with amendments which has been described by the right groups as a watered-down version of the original bill. If so, will the state sector auditing under the diluted National Audit Bill provide the necessary accountability and transparency, or will it fail in its main objectives?  

Reference: Misconduct in Public Office by The Crown Prosecution Service, UK. 

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Latest comments

  • 6
    1

    Lalith Weeratunga is a top class criminal and a fraudster. He is roaming the streets in full suit and smiling from ear to ear. We simply cannot understand the actions of our courts. A woman who steals three mangoes is in jail where as a SOB who had embezzled Rs. 6 million in public funds in broad day light is roaming the streets. Did not LW order the transfer of funds to in billions to the USA for lobbying to complete outsiders like Zuberi, a Pakistani national, the investment of Euros 22 million in the most foul Greek Bonds, without the approval of the Cabinet or the Monetary Board. Who gave him such authority when only the Monetary Board has such powers. This bastard should be stripped of his clothes together with his wife and paraded on the public thoroughfare till he tells that MARA ordered such payments. He and his children one day has to pay for these sins with life. .

    • 1
      1

      Don’t blame wife please

  • 1
    0

    Not just limited to few issues as mentioned above there had been various untold stories on how they previous men close to MR adminstiration abused the public funds.There had been estimable and unetimable sorta of fund abuses. Like for example, as we closely study it today, at the time, MAHINDODAYA small labs and toilets were opened at each schools in rural conrers, the security of Rajakashe had to waste millions. Today, the costs have been saved, but no media focus on that. Alone the entourages of MR contained various kinds of MPs and their kith and kin whose air costs were a burden to the sums collected from the nation. But never ever, MR adminstration was ashamed to continue. Recalling all these, by mid of 2014, MR himself was CRYSTAL clear the billions of losses that the national carrier had then made -nevertheless MR took an aircraft loading as usula to ROME. remember ?This is how this blind President managed his govt.
    Today, on the stage, MR himself has the audacity to tell the fooling audience, that he himself allowed it. Even if MR or the like men would shamelessly behave so, people in this counry that have been subjected to long term corruption and abusive nature would never change thir nature easily.
    Today generations as we notice their nature seem to have no hearts to their own parents- or teachers and any elderly people in the society: Their behavoiurs should be highly influenced with the the parental behaviours.

    Tobe continued.

  • 1
    0

    The Verdict was spot on. Absolutely. What was hair-raising was that their lawyers promptly filed an appeal and both were out on bail from jail in double quick time. Interestingly, the reason given for bail was because it was unlikely that the appeal filed would end within those 3 years!

    “The trouble with laws these days is that criminals (and their lawyers) know their rights better than their wrongs.” -Author Unknown.

    The annual performance report of the Justice Ministry for the year 2017 which was presented to Parliament recently said 705,075 cases have been pending in the year 2017.The report said 4,033 cases were pending in the Supreme Court, 4,932 in the Court of Appeal, 6,097 in Commercial High Courts, 5,833 in Civil Appellate Courts, 17,552 in the High Court, 190,803 in District Courts, 474,552 in Magistrate’s Courts and 1,282 in the Children’s Magistrate’s Courts were pending as of December 31, 2017. A total of 29,783 cases that have been referred to the Legal Aid Commission were also reported as pending. The report also revealed that 247 convicts who were sentenced to death in 2017 have been pardoned by the President during that year.

  • 2
    0

    This “Sil Redi” bundle carried a label: “A religious offering by Mahinda Rajapakse in pursuance of Mahinda Chinthanaya”. This “Head” of SLAS , Mr. Weeratunga and the other “convicted” Mr. Pelpola should have known ( both KNEW) that Rs. 300 million belonging to the Telecom Regulatory Authority was an “ILLEGAL” expenditure in terms of the “Rules and Regulations” governing that State Organization. What is there to “APPEAL” against the CONVICTION? I fell that “SENTENCE” (Punishment) is NOT ENOUGH. If that “Sil Redda” was a “RELIGIOUS OFFERING” by Mhahinda Rajapakse, the cost of that “OFFERING” must be born by the “DONOR” (MR) and not the PEOPLE. This much, these two high “PROFESSIONALS” could not understand. Are they “PROFESSIONALS”? In another, of course unrelated case, this Weeratunga was the “HEAD” of SLAS who wrote a letter under his own signature and got released a girl (Cabin Crew) from SriLankan Air to work at the “Presidential Secretariat” and handed her over to Namal Rajapakse. She in her testimony admitted, that she NEVER worked at the “Presidential Secretariat”. Incidentally, today that “SHE” is an “ELECTED” representative of the “PEOPLE” in the Colombo Municipal Council. What a country administered by “PROFESSIONALS” and voter population of “IDIOTS”? Hope the JUDICIARY will do their part to CORRECT this “MESS” and send a STRONG SIGNAL both to the “PROFESSIONALS” and the “PEOPLE” – the VOTERS.

  • 2
    0

    Gamini Wijesinghe!

    You are right when you say that ” more than half the state officials would be in jail……” however if prompt action was taken against those officials and matters nipped in the bud, half would have been reduced to quarter.

  • 2
    0

    These men in picture should be hung by their balls to have abused all the state funds for their low level performanaces.

    Why the bugger MR allowed them to behave so is more than questionable, but media covered all these.
    Media, Rajaakshes, those high profile state authorities had done the job as a combined crime. Crimes against the humanity. THere are millions of people that live without – the cheapest food item -drinking water.
    There are millions that struggle surviving without proper shelter.
    But these ballige puthas to abuse state funds but repeating the palatable about their boasts.
    I think if TEACHings OF BUDDHA are truth, Rajakshes should be punished by NATURE in foreseeble times. Curse be with them whatever the bugger would plan to do.

  • 2
    1

    Dear Mr Gamini Jayaweera

    Can any order by the EXECUTIVE President in respect of a financial disbursement leading to a loss to the state coffers be challenged as ILLEGAL ?

    As he assumed office the Prime Minister suspended the construction of Port City extending for a period of two years leading to a compensation claim by the contractor approximately one million USD per day which was set off by allocating additional land to the Chinese. Who carried out the order?

    Who are secretaries involved in (carrying out orders) selling prime national assets like Sea Ports , Airports, thousands of acres of land to foreign entities?

    Had the Sil redi been distributed in May or if anything allocated in December to Christians would it be interpreted as legal? Under which law?

    Should;or shouldn’t the public officials always refer the finance related orders of Ministers to the Attorney General?

    Finally who carried out the ILLEGAL orders given by Lalith W of physical distribution of Sil redi.? Will you please enlighten us as to at what level down the line ILLEGALITY stops.

    Soma
    It is going to be a very sigficant appeal judgement of far reaching consequences.

    • 1
      0

      Dear Soma,
      Thank you very much for your comments which I have read with interest.
      As far as I know if any of those dealings which you have described satisfy the all 3 ingredients as stated in the article then those dealings are illegal.
      Regards
      Gamini

      • 0
        0

        Dear Sir
        Thanks. Still it puzzles me that giving/initiating an illegal order is not illegal while carrying out an illegal order is illegal – President is not illegal but secretary is illegal. Then at the next level giving and illegal order is illegal but the officer below who carried the illegal order is not illegal- Secretary is illegal but the Chief Financial Officer at TRC who released the money is not illegal. A conundrum beyond me.

        Who will protect the public servant who REFUSES to carry out the illegal order from above. At the administrative level INSUBORDINATION is an offence , but of course the subordinate will be cleared after a lengthy legal process. At what cost to the poor fellow?

        Legal or illegal this case will result in Ministers carrying out regardless while the high level public servants are terrified seriously impacting the efficiency of the public service. You will have a very clean, stand still public service if that is what we want. It seems that is what we already have after FCID – Everything at standstill.

        Soma

  • 0
    0

    In December 2016, MS (under an year into his term) informed us that ~ “……..more than 50% of Sri Lanka’s public procurement contracts were tainted by bribery and corruption”.
    We felt it was close to 100% and the ‘cashew nuts’ incident proved it.
    In June 2018, the Auditor General, Mr.Gamini Wijesinghe stated that ~ “… more than half the state officials would be in jail if they were dealt in the way former Presidential Secretary, Mr. Lalith Weeratunge………”.
    Here again we feel that it will be far far far more than 50%. Can a prison be administered with almost all the prison staff, police etc. etc. in prison?
    .
    More to the point: Lalith Weeratunge was under the impression that he was working for a ‘forever government’ of the Papa Doc type.
    The 2015 elections buggered it!
    We mandated the new GoSL to bridle the culture of corruption/nepotism/impunity. They straightway joined the ‘culture’.
    .
    The said ‘culture’ is now a parallel driving force of our economy. Or is it the only force? We, the under-privileged, slave to keep the governance going.
    With an election round the corner, the ‘culture’ is made out as a badge worn by knights in white armour.
    Do we have a surprise ‘enough is enough’ message?

  • 0
    0

    It is a pity or rather a disgrace to see that the present two leaders do not still realise the gravity of our country’s position which has deteriorated almost on all fronts.They are boastfully announcing their success in introducing the right to information and few other perks to the people which can be compared only to a drop in the ocean vis a vis the unlimited perks and benefits the politicians have allocated to themselves in addition to their usurped freedom to plunder and pillage of Government assets at will. Could any one think that these dishonest members of parliament past and present will accept their guilt “NO” on the other hand they presume that the people will forget and are fighting tooth and nail to return to power. What could be the slogan both for Govt. and the opposition , by the way the country is not sure which is the Government and which is the opposition, we could see a lot of frog leapers in a future election. One thing the Electorate can be sure is that none of the present parties including the Govt. will never include in their Manifesto how they will rid the country of corruption or how they will establish the rule of law, but the real rogues have a definite explanation of their own, giving credence to their claim that, that the Govt. was making wild accusations which was a mere which hunt, and there is no evidence that they have misappropriated or robbed Govt. Wealth.Very simple explanation, of course some will digest this fodder like the four stomach creatures. Let us be prepared to eat the humble pie. As things are only alternative left for the emancipation of our country is to get rid of all these sitting corrupt MPP. big or small, how? Present to the people clear and clean manifesto that will overhaul and change the entire complexion of Governance, not like Yahapalanaya which has been prostituted.

  • 1
    0

    Dear Editor, in addition to my above observation I wish to congratulate the whistle blower Nagananda for his efforts to educate the masses about the illegal and unlawful actions and behaviour of our country’s past political leaders. To this day the politicians are shamelessly enjoying these benefits at the expense of the poorest of the poor. None of the politicians of today or yesteryear had had the heart to speak up for the poor, but some may have shed crocodile tears at election time.People of good will must come out of their cocoons and political party affiliations and help to change this uncivilised political culture. unfortunately we do not see the free media is serving the people honestly except for a few rare cases.

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