Now that Chief Justice Sarath N. Silva has retired, various views are being expressed on the role played by the Supreme Court and some of its judgments during his tenure. Opinions articulated by senior lawyers at a CEOs` forum last week on public interest litigation and judicial intervention in privatisation deals are of immense interest.
Close on the heels of leading businessman Harry Jayawardena s statement at a meeting with Foreign Minister Rohitha Bogollagama the other day that foreign investors were jittery about coming here because of judicial intervention in business matters, Corporate lawyer Arittha Wikaramanayake was quoted by the Sunday Island yesterday as having told the CEOs` forum that defendants concerned were too scared to challenge the former CJ: `The complaint here is not about the process. The people complain they were rushed into the hearing. Unfortunately, no one had the courage to get up and say, okay, enough is enough.`
President`s Counsel K. Kanag-Isvaran told the forum there were concerns about the suitability of the Supreme Court to hear complex privatisation cases. Before a person was found liable in law for wrongful transactions or fraudulent transactions, he should have the right to be heard fully and represented, he said pointing out that the court had the discretion to review judgments if there was fresh evidence available after the delivery of judgments. In his view, `the future is for the court itself to examine and advise itself and ourselves as to what are the limits on the exercise of its jurisdiction in the light of concerns expressed across the board on the exercise of it.` He said a `fear psychosis` had been created because of some judgments and public interest litigation.
The legal bigwigs who addressed the CEOs` forum know their law and their opinions are to be respected. However, the landmark SC judgments in cases such as the privatisation of the Sri Lanka Insurance Corporation, the Lanka Marine Services Ltd and the alienation of State land for Waters Edge have warmed the cockles of many a heart.
Judicial activism which characterised the Supreme Court during CJ Silva`s tenure stemmed from the failure of other organs of the State to safeguard public interest. After the introduction of an open market economy, the State sector became something like a ship seized by pirates. Captain Hooks in the corporate sector bent on plundering public assets had a field day with State ventures going for a song. Corporate bandits abused their links with powerful politicians, whose election campaigns they funded, and cashed cheques at the expense of public assets. The massive loss the country incurred owing to such questionable deals is believed to be over one thousand billion rupees between 1985 and 2005. That amount, as we often point out in these columns, is equal to about three times the IMF standby facility Sri Lanka has obtained with the greatest difficulty.
When the country found itself lost between the private sector buccaneers and their political patrons, the Supreme Court came to its rescue by opening an escape route. It may be argued in some quarters that the Supreme Court is not the appropriate forum for sorting out such matters. But, the fact remains that no other institution cared to clear up the mess. Parliamentary watchdog committee COPE (Committee on Public Enterprises) under MP Wijeyadasa Rajapaksa`s chairmanship exposed a number of fraudulent deals but Parliament took no action to bring culprits to book. Damning reports by the Public Accounts Committee (PAC) and the Auditor General on State ventures have gone unheeded. The Bribery Commission has been rendered a toothless tiger by Parliament. It has been deprived of powers to initiate investigations on its own. It also lacks the courage to stand up to powerful politicians and is therefore dragging its feet on the COPE findings referred to it many moons ago. The corporate sector is quite capable of controlling the media or the so-called guarddogs/watchdogs through advertising and therefore they are selectively efficient and biting! Even the NGOs which get paid millions of US dollars to promote transparency in this country have pathetically baulked at taking on the corrupt businesses!
So, it is only natural that some concerned citizens perturbed by the robbery of Sate resources had to invoke the jurisdiction of the Supreme Court, which reversed the sale of some State ventures. The plunders of public assets were thus halted in their tracks. Hats off to the Supreme Court and former CJ Sarath N. Silva! If the SC judgments on corrupt deals have created a `fear psychosis`, they have, in our book, had the desired impact! For, they have given a scare to corrupt businesses. We don`t think the law-abiding good corporate citizens should have any fears about the judiciary. It is the clean businesses and their money that this country needs.
Ironically, while a debate is on in this country on the role played by the Supreme Court and former CJ as regards corrupt privatisation deals, it is reported that Indian Chief Justice K. G. Balakrishnan favours the confiscation of looted property. The Sunday Island yesterday reproduced a Hindu dispatch, which said: `Taking note of the demands for enhancing the penalties and punishments under the Prevention of Corruption Act (PCA), Chief Justice of India K. G. Balakrishnan on Saturday appeared inclined to favour a statutory provision for the confiscation of properties and assets of persons convicted of offences under the Act.` Sri Lanka, too, needs such laws to deal with the corrupt in an appropriate manner!
In this country where more than one half of people live in poverty over twenty five percent of children are malnourished hospitals are without enough drugs schools as well as universities are ill-equipped to provide a decent education to one and all and the economy is at the mercy of hostile external forces, the plunder of national assets is nothing but a crime. It is, therefore, the bounden duty of the judiciary to actively engage the highly connected robber barons, given the shameless impotency of other State organs and the self-appointed watchdogs and guard dogs. The hapless public is without any other defence.