By 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.
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.
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.”
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.