In the most significant blow dealt by the Supreme Court against the system of the executive presidency introduced by the 1978 Constitution, yesterday (October 8, 2008), a former president of Sri Lanka, Chandrika Kumaratunga Bandaranaike, was held to be liable for a corrupt deal relating to her abuse of power in the transfer of valuable state property to a company in betrayal of the public trust placed on her office. The court based its judgment on the premise that no one, including the president is above the law; in that public office is held on the basis of public trust, that must exercise presidential power in accordance with the rule of law, in compliance with ones conscience and sense of integrity owed to the people; that the president by the oath that is taken as president is expected to faithfully perform the duties and discharge the functions of the office of the president in accordance with the Constitution and the law.
The court made this judgement in regard to a fundamental rights application lodged by several Petitioners against the former president, Chandrika Kumaratunga Bandaranaike, the Asia Pacific Golf Course Ltd, Urban Development Authority (UBA), the Board of Investment (BoI) and several directors named in the petition. The court ordered the former president to pay Rs 3 million, a businessman, Ronnie Peries Rs 2 million and three others to pay Rs 1 million each as compensation to the state.
The court also ordered the bribery and corruption commission to immediately launch an investigation into the transaction and to scrutinise the behaviour of all stake holders including the former president.
Referring to the liability of the former president the court noted that no single position or office created by the Constitution has unlimited power and the Constitution itself circumscribes the scope and the ambit of the power vested in any president who sits as . It further stated that a person elected to the presidency or as a minister are so chosen because they are deemed to embrace, uphold and set an example in following the rule of law and hold in trust the executive power of the people acquired through the sovereignty of the people. The court further noted that the president does not have the power to shield, protect or coerce the action of the state officials or agencies, when such action is against the tenets of the Constitution and public trust. The court further went on the elaborate the doctrine of public trust.
The court observed that the public trust doctrine is based on the concept that the powers held by organs of the state are those that originate from the people. These powers are entrusted to the legislature, executive and the judiciary only as means of exercising governance with the sole objective of the use of such power in good faith for the benefit of the people of the country. The public power, the court stated is not to be used for personal gain or to grant favours but always to be used to optimize the benefits of the people. To do otherwise is to betray the trust imposed by the people within whom, sovereignty reposes.
The court also went on to state that state authorities cannot merely argue that procedure have been followed when despite of procedural compliance a violation of a public trust has taken place. The state officers cannot also take cover under the actions being done on the orders of superiors because such a defense is not afforded to state institutions or state actors.
This lengthy judgement can be said to be the first significant judicial intervention against the perceived absolute power of the executive presidency. It is this perceived power of the executive president, who the first executive president claimed as having the only limitation of being unable to change a man to a woman, has played havoc on the political system as well as the legal system of Sri Lanka. All who abuse power took cover under the defence of being directly or indirectly connected with the executive president who was perceived to be above the law.
The most obvious result of the executive president being considered above the law was the politicisation of all the public institutions. The executive president directly or through his ministers or even persons completely outside the state structure, could manipulate every small corner of the public service and interfere with all institutions. Such interference and the rule of law came into direct conflict. However, there was no way to reassert the rule of law as against this politicisation process.
The first ever attempt to deal with this conflict was the 17th Amendment to the Constitution which was adopted in 2001, almost unanimously by all parties. According to this constitutional amendment a Constitutional Council was created to be appointed by consensus of all political parties which in turn had the power to appoint the commissions who had the powers of appointment, transfer, disciplinary control and dismissal of public servants belonging to various public institutions.
The Rajapakse regime halted the operation of this constitutional amendment by refusing to appoint members to the Constitutional Council. Thus, the executive president removed the limited obstruction that was created by the constitutional amendment to the presidents use of absolute power and the resultant politicisation. The very refusal to implement the 17th Amendment was a clear indication of the arbitrariness with which the Constitution itself was ignored by the executive. After the failure of the 17th Amendment a helpless situation was created within which the aggrieved citizens found that they had no way to challenge the completely arbitrary system that imposed unbearable burdens on them.
One of the most difficult problems for the citizens to deal with is the area of corruption. The public perception is about the rampant spread of corruption into every aspect of society. While extraordinary enrichment is seen among those who are closer to the ruling regime, the rest of the people cannot get anything done unless they are willing to pay bribes or otherwise influence the powerful. Even the possibility of publicising corruption became a matter that carried serious risks. The media in particular was harassed and coerced into silence, while the state media unscrupulously manipulated public space to suppress information.
The present judgement of the Supreme Court perhaps will open new avenues to challenge the climate of the complete suppression that is going on in the country where those who abuse public trust virtually claim the right to engage in such abuse. The first ever judicial action to impose a punishment on a former holder of the executive presidency is of enormous significance under any condition. Under the present conditions it may be seen as a boon by the desperate people of the country whose ownership of the sovereignty has been rendered meaningless by the unscrupulous use of power. As this action extends also to other holders of public office, such as officials of the UDI and BoI and even goes beyond to private parties, this judgement can provide a framework to deal with some of the most difficult problems that the people are facing in terms of the Constitution, rule of law and massive corruption.
The courts order to the bribery and corruption commission to investigate all matters relating to the relevant transaction is also an important direction given by the Supreme Court. Bribery and corruption are crimes and such crimes of public importance should be prosecuted under the law of Sri Lanka. Unfortunately the bribery and corruption commission is still a very inadequate instrument to effectively deal with the elimination of such behaviour. If the doctrine of public trust that has been annunciated in this judgement is to be realised it is essential to develop a powerful commission on bribery and corruption with powers and resources as are provided in countries which have effective institutions. Many Sri Lankan observers have found that the Hong Kong model of the Independent Commission against Corruption provides a suitable model for effective corruption control. The acceptance of the doctrine of public trust demands institutional development that is capable of practical implementation of this doctrine.
