By Chandra Jayaratne –
One media station tagged the ‘Bond Scam’ as the greatest financial loss inflicted on the nation since its independence. The million dollar question yet remaining unanswered however is, ‘will the truth, the extent of the scams, the long term impact on the nation and its citizens, the real culprits and recovery of proceeds of the crime be ever be transparently visible for society expectations of Justice to be delivered.
Since 2015, beginning with analyst amber signals, media exposes and debates, parliamentary debates, followed up by public interest litigation, central bank investigations, Auditor Generals Reports, COPE committee reviews, the Presidential Commission Report and most recently the Forensic Audit reports, have made available to the public, sufficient material on the purported ‘bond scam’ and even the details of similar scams.
The Forensic Audit Reports cover the years prior to 2015; where irregularities are seen even under other accountability regimes. Regrettably, these Forensic reviews have left out of its scope, the essential detailed examination of the biggest scam of all purportedly carried out in March 2016 (which in any event is unpardonable to have been allowed to take place despite the public fury and remedial action demands following February 2015 scam). It is also likely that these Forensic Reviews have failed to ‘follow the money tracking of placements, layering and integration led money laundering tracings’ essential to institute court action.
In the back drop of the purported Primary Dealer mainly connected to the 2015 and 2016 scams, failing to be liable for tax on its publicly declared profits from these wrongful trades and also not being subjected to Financial VAT and Deemed Dividend Taxes, despite activist demands can citizens expect any action to recover proceeds of these crimes?
The only silver lining is that the material publicly now available could provide the interested citizens and even law enforcement officers, sufficient information to make their own judgments and express opinions; and even to advocate on the best option next step strategic actions. In this context should public interest oriented activists set up a mechanism to establish a Peoples Court ?
The business persons, professionals, academics, intellectuals, civil society activists, media expose journalists and even common citizens, leaving aside for the present, the accountability of the Executive, Legislature and the Judiciary, should now begin to engage in a review process, in order to make up their mind on the reality or the myth of the purported ‘bond scams’ and their impact on the society and citizens. They can now, also determine or at least get a ball park estimate of the likely extent of losses, suffered by the State, the EPF/ETF/Privately managed Funds, individual investors and last but not least the society as a whole ( ie. actually all present and future taxpayers, who are all the citizens of today and tomorrow). They should collectively or individually, even publicly critique and debate; and try to reach a decision on the reality or the myth of what previous and present governments, politicians, officials, the governors, central bankers, primary dealers, public / private funds, state institutions, law enforcement officials, media and even the potential parties with direct or indirect connections to the scam have done, who are the other third parties who have either engaged in and / or aided and abated in any irregular, illegal, unethical or nationally detrimental actions leading to the purported losses, which ultimately fall on the nation and its citizens of today and tomorrow.
Post the aforesaid review, the suggested stakeholders should also attempt to draw up a list of potential suspects, who may have engaged in such conspiracies; encouraged or led such conspiracies from the background; those who directly or indirectly engaged in their execution and also identify those who aided and abated in any such irregular, illegal, unethical transactions, including those persons who in supervisory or control positions with accountability to prevent such incidents who failed willfully and knowingly to take such preventive actions.
The next step for these stakeholders, where possible is to identify the potential charges that can be framed against these errant persons and possibly even prepare an ‘Evidence Matrix’ identifying the critical relevant dates, the irregular /illegal/unethical transactions/events, available evidence, persons responsible, purported violation or offense, potential charges.
The final step in this process is to recommend action that should be taken to recover the proceeds of crime.
Towards the initiative suggested above, the relevant statutory provisions and jurisprudence that can be considered by the public stakeholders in determining the potential charges against the errant persons are those arising mainly from the Penal Code, Bribery Act, Declaration of Assets and Liabilities Law, Securities & Exchange Commission Act, and Registered Sock and Securities Ordinance, EPF Act and Monetary Law Act.
Looking Forward to Civil Society Collective Activism in setting up an independent and competent Peoples Court supported by citizens in advocacy and exerting pressure on the government and law enforcement and guiding independent citizens’ voting decisions of the future, set out hereinafter are the Relevant Statutory Provisions and Jurisprudence for Consideration and Benchmarking by the Collective Stakeholders and Peoples Court
- Penal Code Chapter V A – Of Conspiracy
“Definition of conspiracy”
Sections 113 A (1) & (2) and B)
(1) If two or more persons agree to commit or abet or act together with a common purpose for or in committing or abetting an offence, whether with or without any previous concert or deliberation, each of them is guilty of the offence of conspiracy to commit or abet that offence, as the case may be.
(2) A person within Sri Lanka can be guilty of conspiracy by agreeing with another person who is beyond Sri Lanka for the commission or abetment of any offence to be committed by them or either of them, or by any other person, either within or beyond Sri Lanka; and, for the purposes of this subsection as to an offence to be committed beyond Sri Lanka offence means any act which if done within Sri Lanka would be an offence under this Code or under any other law.
- Penal Code CHAPTER XVII – OF CRIMINAL BREACH OF TRUST
“Criminal breach of trust”
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits ” criminal breach of trust”.
Criminal breach of trust by a clerk or servant
Whoever, being a clerk or servant or employed as a clerk or servant, and being trust in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Criminal breach of trust by public servant, or by banker, merchant, or agent
Whoever, being in any manner entrusted with property, or with any dominion over property, in his capacity of a public servant or in the way of his business, as a banker, merchant, factor, broker, attorney, or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine
- Penal Code CHAPTER IX – OF OFFENCES BY OR RELATING To PUBLIC SERVANTS
Public servant taking a gratification other than legal remuneration in respect of an official act
Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever (‘gratification’ is not restricted to pecuniary gratifications or gratifications estimable in money), other than legal remuneration, as a motive or reward for doing or forbearing to do any official act, or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any person, or for rendering or attempting to render any service or dis-service to any person the Government of Ceylon, or with any public servant as such shall be punished imprisonment of either description for a term which may extend to three years, or with fine or both.
Taking a gratification in order by corrupt or illegal means, to influence a public servant
Section 159 and
Taking a gratification for the exercise of personal influence with a public servant
Section 160 and
Punishment for abetment by public servant of the offences above defined
Public servant disobeying a direction of the law with intent to cause injury to any person or the Government
Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause or knowing it to be likely that he will, by such disobedience, cause injury to any person or to the Government, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
Public servant framing an incorrect document with intent to cause injury
Whoever, being a public servant, and being, as such public servant, charged with the preparation or translation of any document, frames or translates that document in a manner which he knows or believes to be incorrect, intending thereby to cause, or knowing it to be likely that he may thereby cause, injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
- Penal Code CHAPTER XI- OF FALSE EVIDENCE AND OFFENCE AGAINST PUBLIC JUSTICE
Causing disappearance of evidence of an offence committed, or giving false information touching it, to screen the offender
Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false
Intentional omission to give information of an offence by a person bound to inform
Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine or with both.
Giving false information respecting an offence committed
Whoever, knowing or having reason to believe that an offence has been committed, gives any information respecting that offence which he knows or believes to be false, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Destruction of document to prevent its production as evidence
Whoever secrets or destroys any document which he may be lawfully compelled to produce as evidence in a Court of Justice, or in any proceeding lawfully held before a public servant as such, or obliterates or renders illegible the whole or any part of such document with the intention of preventing the same from being produced or used as evidence before such court or public servant as aforesaid, or after he shall have been lawfully summoned or required to produce the same for that purpose shall be punished with imprisonment of either description for a term which may extend to two years, or with fine , or with both.
Fraudulent removal or concealment of property to prevent its seizure as a forfeiture or execution of a decree
Whoever fraudulently removes, conceals, transfers, or delivers to any person any property or any interest therein intending thereby to prevent that property or interest therein from being taken as a forfeiture, or in satisfaction of a fine under a sentence which has been pronounced, or which he knows to be likely to be pronounced, or which he knows to be likely to be pronounced, by a Court of Justice or other competent authority, or from being taken in execution of a decree or order which has been made or which he knows to be likely to be made by a Court of Justice in a civil suit, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
- Penal Code CHAPTER XXII – OF ATTEMPTS TO COMMIT OFFENCES
Punishment for attempting to commit offences punishable with imprisonment
Whoever attempts .to commit an offence punishable by this Code with imprisonment, or to cause such an offence offences to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of either description provided for the offence, for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both
- All of above
- Read with Penal C ode Chapter V Abetment Sections 100, 101 & 101A, 105, 109, 112, and 113
- Read together with Penal Code Sections 10- Person, 19- Public Servant, 20- Moveable Property, 21- Wrongful Gain and Loss, 22-Dishonesty, 23-Fraudulently, 24- Reason to Believe, 27- Document, 31-Ommission, 32- Act done by several persons in the furtherance of common intention, 34- Effect Caused partly by Act and partly by ommission35- Co-operation, 36- Several Persons Engaging in Criminal Act, 41- Illegal, 42, Legally Bound, 51, Good Faith – Without due Care and attention
- Bribery Act (No. 2 of 1965)
Bribery in respect of Government business
19. A person-
(a) who offers any gratification to a public servant as an inducement or a reward for that public servant’s performing or abstaining from performing any official act, or expediting, hindering or preventing the performance of any official act whether by that public servant or by any other public servant, or assisting, favouring, hindering or delaying any person in the transaction of any business with the Government, or
(b) who, being a public servant, solicits or accepts any gratification as an inducement or a reward for his performing or abstaining from performing any official act or for such expediting, delaying, hindering, preventing, assisting or favouring as is referred to in paragraph (a) of this section, or
(c) who, being a public servant, solicits or accepts any gratification which he is not authorized by law or the terms of his employment to receive,
shall be guilty of an offence punishable with rigorous imprisonment for a term of not more than seven years and a fine not exceeding five thousand rupees.
Bribery of public servants by persons having dealings with the Government
21. A person –
(a) who, while having dealings of any kind with the Government through any department, office or establishment of the Government, offers any gratification to any public servant employed in that department, office or establishment, or
(b) who, within one year before or after his having dealings of any kind with the Government through any department, office or establishment of the Government, offers any gratification to any public servant employed in that department, office or establishment, or
(c) who, being a public servant, solicits or accepts any gratification the offer of which is an offence under this section,
shall be guilty of an offence punishable with rigorous imprisonment for a term of not more than seven years and a fine not exceeding five thousand rupees : Provided, however, that such offer of a gratification to a public servant as is referred to in paragraph (b) of this section shall not be an offence under this section if the offerer proves that the gratification was bona fide offered for a purpose not connected with and not relating to such dealings as are referred to in that paragraph and that when he offered the gratification he had no hope or expectation of having any such dealings or he did not intend that the gratification should be an inducement or a reward for that public servant’s doing or forbearing to do any act connected with or relating to any such dealings.
Attempt to commit, and abetment of, an offence under this Part
25.(1) A person who attempts to commit or to cause the commission of an offence under this Part of this Act and in such attempt does any act towards the commission of that offence shall be guilty of an offence and shall be tried in the same manner, and shall upon conviction be liable to the same punishment, as is prescribed by this Act for the first-mentioned offence.
(2) A person who abets an offence under this Part of this Act shall be guilty of an offence and shall be tried in the same manner, and shall upon conviction be liable to the same punishment, as is prescribed by this Act for the first-mentioned offence. In this sub-section the expression ” abet” shall have the same meaning as in sections 100 and 101 of the Penal Code
When a person offers a gratification
88. For the purposes of this Act a person offers a gratification if he or any other person acting with his knowledge or consent directly or indirectly gives, affords or holds out, or agrees, undertakes or promises to give, afford or hold out, any gratification to or for the benefit of or in trust for any other person.
When a person solicits or accepts a gratification
89. For the purposes of this Act-
(a) a person solicits a gratification if he, or any other person acting with his knowledge or consent, directly or indirectly demands, invites, asks for, or indicates willingness to receive, any gratification, whether for the first-mentioned person or for any other person, and
(b) a person accepts a gratification if he, or any other person acting with his knowledge or consent, directly or indirectly takes, receives or obtains, or agrees to take, receive or obtain any gratification, whether for the first-mentioned person or for any other person.
” public servant” includes every officer, servant or employee of the Crown, or of any local authority, or of any scheduled institution, every juror, and every arbitrator or other person to whom any cause or matter has been referred for decision or report by any court or by any other competent public authority; ” scheduled institution ” means any such board, institution, corporation or other body as is for the time being specified in the Schedule to this Act.
- Chapter 26 – Bribery Act – *PART V-OFFENCES OTHER THAN BRIBERY
Corruption.[§ 7,20 1994.]
Any public servant who, with intent, to cause wrongful or unlawful loss to the Government, or to confer a wrongful or unlawful benefit, favour or advantage on himself or any person, or with knowledge, that any wrongful or unlawful loss will be caused to any person or to the Government, or that any wrongful or unlawful benefit, favour or advantage will be conferred on any person-
(a) does, or forbears to do, any act, which he is empowered to do by virtue of his office as a public servant;
(b) induces any other public servant to perform, or refrain from performing, any act, which such other public servant is empowered to do by virtue of his office as a public servant;
(c) uses any information coming to his knowledge by virtue of his office as a public servant;
(d) participates in the making of any decision by virtue of his office as a public servant;
e) induces any other person, by the use, whether directly or indirectly, of his office as such public servant to perform, or refrain from performing, any act, shall be guilty of the offence of corruption and shall upon summary trial and conviction by a Magistrate be liable to imprisonment for a term not exceeding ten years or to a fine not exceeding one hundred thousand rupees or to both such imprisonment and fine.
- REGISTERED STOCK AND SECURITIES ORDINANCE
Issue of registered stock, promissory notes, bearer bonds and treasury bonds for the purpose of raising authorized loans
2. (1) ….the Minister in charge of the subject of Finance may from time to time raise such sum or any part thereof under the provisions of this Ordinance in any one or more of the following modes:—
(a) by the creation and issue of registered stock;
(b) by the issue of securities in the form of Government promissory
(c) by the issue of securities in the form of bearer bonds;
(d) by the issue of securities in the form of treasury bonds
Registrar to make necessary arrangements
5. Upon the publication under section 4 of an Order of the Minister in charge of the subject of Finance in respect of any loan to be raised under this Ordinance, the Registrar may, subject to the provisions of that Order and to such further directions as the Minister in charge of the subject of Finance may issue in that behalf, make all such arrangements as may be necessary to raise that loan upon the most favourable terms that can be obtained.
Restrictions on purchase of stocks and securities.
5A. (1) Any application or bids for the purchase of registered stock or securities may, having regard to the interests of the national economy, be restricted to primary dealers and designated non-dealer bidders.
(2) Without prejudice to anything contained in this Ordinance particularly the provisions of sections 21C, 21D, 21E, and 21F, the Central Bank shall regulate, supervise and monitor the primary dealers and the designated non-dealer bidders with respect to their transactions in Treasury Bonds issued in the form of written certificates.
Register of stock
6. The Registrar shall keep a register in respect of each issue
Delegation of powers of Minister in charge of subject of Finance.
56. The Minister in charge of the subject of Finance may by Order published in the Gazette delegate to the Secretary to the Treasury any powerconferred on the Minister in charge of the subject of Finance by thisOrdinance subject to such conditions, reservations and restrictions as may be specified in the Order
56A. (1) Any person who—
(a) fails to comply with any provision of this Ordinance or any regulation, order, or direction given thereunder;
(b) furnishes for the purposes of this Ordinance any information which is, or any return the contents of which are, to his knowledge false or incorrect;
(c) with intent to deceive—
(i) makes or causes to be made a false entry, or
(ii) omits to make, or causes to be omitted, any entry; or
(iii) alters, conceals or destroys, or causes to be altered, concealed or destroyed, any entry, in any of the records of the Central Bank, or in any books, records or accounts of any direct participant, including any dealer direct participant, or any primary dealer, shall be guilty of an offence under this Ordnance.
(2) Any person guilty of an offence under this Ordinance shall be liable on conviction after summary trial before a Magistrate, to imprisonment for a term not exceeding five years or to a fine not exceeding ten million rupees or where the offence has resulted in monetary loss or monetary gain or a loss or gain which is quantifiable in monetary terms to any person, to a fine equivalent to twice the value of such loss or gain or to both such imprisonment and fine.
(3) The Central Bank may, with the consent of Court, having regard to the circumstances in which an offence under this Act was committed compound such offence for a sum of money not exceeding rupees five million, or where the offence has resulted in monetary loss or monetary gain or a loss or gain which is quantifiable in monetary terms, to any person, for a sum of money equivalent to one and a half times the value of such loss or gain.
(4) The compounding of an offence under this section shall have the effect of an acquittal.
56B. Where the person convicted of an offence under the Ordinance is a body corporate, every person who at the time of the commission of the offence was a director or an officer of the body corporate shall be deemed to be guilty of that offence unless he proves that the offence was committed without his knowledge, or that he exercised all due diligence to avoid the commission of such offence.
The Gazette of the Democratic Socialist Republic of Sri Lanka
REGISTERED STOCK AND SECURITIES ORDINANCE (CHAPTER 420)
REGULATIONS made by the President of the Democratic Socialist Republic of Sri Lanka under Section 55 of the Registered Stock and Securities Ordinance (Chapter 420) read with paragraph (2) of Article 44 of the Constitution.
President & Minister In-charge of the subject of Finance and Planning.
24th June, 2009.
1. These Regulations may be cited as the “Registered Stock and Securities (Primary Dealers) Regulations No. 01 of 2009”.
APPOINTMENT OF PRIMARY DEALERS
2. (a) The Central Bank may, from time to time, determine the criteria for the appointment of Primary Dealers for the purposes of this Ordinance.
(b) A Primary Dealer appointed by the Monetary Board—
(i) may enter into transactions in Treasury Bonds directly as a counterparty with the Central Bank in the primary and the secondary market and may transact in Treasury Bonds for its own account and for the account of customers in accordance with the Ordinance, any other written law, directions, guidelines, operating instructions and contracts applicable, as the case may be ;
(ii) shall be bound by and comply with these regulations and any directions and guidelines issued by the Central Bank in respect of such Primary Dealers.
Monetary Law Act
Part III – The Governor and Deputy Governors
General functions and duties of Governor.
19. (1) The Governor shall be the chief executive officer of the Central Bank and shall accordingly be charged with the following powers, duties, and functions :–
(a) the execution of policies and measures approved by the Monetary Board and, subject to any such policies and measures as may be applicable, the direction, supervision, and control of the operation of the Central Bank and its internal management and administration;
(b) the preparation or the agenda for meetings or the Monetary Board and the submissions for the consideration of the board of policies and measures considered by him to be necessary for the purpose of carrying out the principles and provisions of this Act; and
(c) the exercise or performance of such other powers or duties as may be conferred of imposed upon him by the Monetary Board.
(2) Every instrument of the following description, that is to say, every contract, promissory note, security, report, balance sheet, statement, or other document and every rule, regulation, order, direction, notice, or requirement which bears the signature of the Governor or such other officer as may be authorized in that behalf by the Monetary Board, shall be deemed for all purposes to be an instrument executed, made, or issued by the Central Bank or by the Monetary Board, as the case may be.
Governor to be principal representative of Central Bank and Monetary Board.
20. The Governor of the Central Bank shall be the principal representative of the bank and of the Monetary Board and shall in that capacity, but in accordance with policies or rules approved or made bythe board, have authority.-
(a) to represent the Central Bank and the board in all relations with other persons, including the Government and any body of persons, corporate or unincorporate, whether public or private,
domestic, foreign, or international; and
(b) to represent the Central Bank and the board in any legal proceedings either personally or through an attorney-at-law.
Delegation of powers of Governor.
21. Subject to and in accordance with such rules, if any, as may be made by the Monetary Board in that behalf, the Governor may delegate to any other officer of the bank his authority to represent the bank for any purpose mentioned in section 20, so however that the Governor shall remain and continue to be responsible to the board for and in respect ofany act or thing done or omitted to be done by any such delegate.
Appointment of Deputy Governor
22. The Monetary Board shall, with the concurrence of the Minister in charge of the subject of Finance appoint one or more Deputy Governors who shall perform such duties and exercise such powers as may be assigned to them by the board
Part VIII – Restrictions Relating to Central Bank Officers and Servants Duty to maintain secrecy.
Duty to maintain secrecy
*45. (1) Except in the performance of his duties under this Act, every officer and servant of the Central Bank shall preserve and aid in preserving secrecy with regard to all matters relating to the affairsof any banking institution or of any client of any such institution or of any matter relating to the affairs of any department of Government, corporation, company, partnership or person that may come to his knowledge in the performance of his duties under this Act, the Control of Finance Companies Act, No. 27 of 1979, or any other law for the time being in force, and any such officer or servant who communicates any such matter to any person, other than the Monetary Board or an officer of the Central Bank authorized in that behalf by the Governor, or suffers or permits any unauthorized person to have access to any books, papers or other records relating to any banking institution, department of Government, corporation, company, partnership or person, shall be guilty of an offence.
Chapter vi – The Central Bank As fiscal Agent, Banker, and Financial Adviser of the Government
Issue of Government securities
112. The issue of secutities of the Government or of any of the agencies or institutions referred to in seubsection (1) of section 106 shall be made through the Central Bank, which shall act as agent, and for the account, of the Government or of such agency or institution:
Provided, however, that except in the case of treasury Bills, for which the Central Bank may make direct tenders, the bank shall not subscribe to any issue of such secutities or agree to purchase the unsubscribed portion of any such issue.
Facilities for maintenance of accounts at the Central Bank and a depository for scripless
112A. The Central Bank shall provide facilities –
(a) for non-commercial bank primary dealers to maintain accounts at the Central bank for the purpose of settling securities transactions;
(b) for direct participants including any direct participant which are not commercial banks, to maintain accounts at the Central Bank for the purpose of holding scripless securities, clearing and settling transactions in scripless securities among direct participants; and
(c) for the maintenance of a depository for recording of title to scripless securities of the Central Bank, of direct participants and, in the case of dealer direct participants, of their customers. The Central Bank may make such rules and regulations as it may consider necessary in relation to the depository.
For the purpose of this section–
(i) treasury bills issued in accordance with the provisions of the Local Treasury Bills Ordinance whether isseud in scripless form or otherwise;
(ii) registered stock or securities issued in accordance with the provisions of the Registered Stock and Securities Ordinance whether issued in scripless form or otherwise;
(iii) any securities of the Central bank whether issued in scripless form or otherwise.
Any body corporate to provide facilities under sections 98(1) and 112A Management of the public debt.
112B. (1) Any or all of the functions referred to in subsection(1) of section 98 and section 112A may, notwithstanding the provisions of such section, be carried out by a body corporate authorised for the
purpose by the Monetary Board subject to such terms and conditions as may be imposed by the Monetary Board.
(2) A body corporate referred to in subsection (1) may hold an account with the Central Bank for the purpose of carrying out such functions.
Management of the public debt
113. The Central Bank shall, as agent of the Government, be responsible for the management of the public debt.
Advice on Government credit operations
114. No new loan shall be raised and no new issue of stock or debentures shall be made by the Government or by any agency or institution referred to in subsection (1) of section 106, whether in pursuance of authority conferred by any written law or otherwise, unless the advice of the Monetary Board has first been obtained upon the monetary implication of the proposed loan or issue
EMPLOYEES’ PROVIDENT FUND ACT
Powers and duties of the Monetary Board in relation to the Fund.
5. (1) The Monetary Board—
(a) may appoint such officers and servants as may be required by the Board for exercising its powers, performing its duties and discharging its functions under this Act, fix the salaries and wages of such officers and servants and determine their conditions of service;
(b) shall receive all sums paid under this Act as contributions, surcharges and fees, and the income from the investment of moneys of the Fund and shall credit such sums and income to
(c) shall have custody of the moneys of the Fund;
(e) may invest such of the moneys of the Fund as are not immediately required for the purposes of this Act in such securities as the Board may consider fit and may sell such securities;
(f) shall maintain a general account in respect of the Fund, and a separate account (in this Act referred to as an individual account) in respect of each member of the Fund;
(2) Every officer or servant appointed under paragraph (a) of subsection (1) shall be deemed to be employed for the performance of duties under the Monetary Law Act, for the purpose of the application of the provisions of the said Act relating to officers and servants.
- All aforesaid Statutory Provisions are also to be Interpreted in the Context of the under noted Jurisprudence
- Doctrine of Joint Criminal Enterprise in the Jurisprudence as a mode of Personal Criminal Liability – allows the prosecution of members of a group for the actions of the group. This doctrine considers each member of an organized group individually responsible for crimes committed by group within the common plan or purpose. International Criminal Tribunal for the former Yugoslavia and the Prosecution of Senior Political and Military Leaders: The Krajisnik Case
Due to the difficulties to determine the criminal liability of each of the offenders who take part in a collective criminality context, the JCE doctrine was conceived as a means to extend criminal liability to all the members of a joint criminal plan. The three categories of JCE share the same objective elements:
1) a plurality of persons;
2) the existence of a common plan, design or purpose; and
3) the participation of the accused in the JCE by any form of assistance in, or contribution to, the execution of the common purpose.
- Public Law Principle of Fraud on a Power, especially, as there is clear evidence of the intention of the Executive and State Officials to abuse and exceed the power vested in them by Parliament and it leads to a consequential losses to Sri Lankan Airlines and the State as its major Shareholder –General Treasury- and also to other third parties via Contracts which in itself can be deemed thus to be ultra vires and this abuse extends to be a Fraud On a Power.
“Fraud on a Power: the interface between contract and equity
Lecture for the Chancery Bar Association Great Hall, Lincoln’s Inn, London
Lord Sales, Justice of the Supreme Court-12 April 2019
In Lord Parker’s formulation of the principle of The equitable doctrine of “fraud on a power”
“The first is to grant discretionary powers to some person to make binding decisions in the future with legal effects. The grant of such powers to one party to a contract may give rise to especially acute issues regarding legal control, to take account of conflicting legitimate interests under the contract.
The second technique is to impose some supervening and flexible obligation regarding future conduct, such as a duty to act in good faith or reasonably, to govern the extent to which opportunistic advantage can be taken of express rights when circumstances change in unexpected ways. The parties may in this way seek to secure some protection against abuse of rights. Fiduciary duties also work in this way.
Both techniques have generated considerable recent interest in the field of contract law. Contract lawyers have become very interested regarding discretions created by contracts and how, if at all, they are to be subject to legal control. There has been something of a trend of reaching out for public law concepts and the public law notions of rationality and capriciousness as possible models for judicial control in this area. “