14th January 2001
Govt has little control over national carrierThe Supreme Court dismissing two fundamental rights applications filed by an employee of the SriLankan Airlines Ltd has observed that the government has lost the 'deep and pervasive' control over the national carrier.
The Bench comprised Chief Justice Sarath N. Silva, Justices Priyantha Perera, Shiranee Bandaranayake, D.P.S. Gunasekera and Ameer Ismail.
Justice Ismail with other judges agreeing said that it was clear from the provisions of the Memorandum and Articles of Association and Shareholders Agreement that the management, power, control, and authority over the business of the SriLankan airlines were vested in the investor, 'Emirates', in addition to certain management decisions being vested exclusively in it.
The petitioner, P.V.D. Leo Samson, sought a declaration that the airline's chief executive officer's letter of 17.11.98, terminating his services was null and void and a violation of his fundamental rights.
In a separate application the petitioner alleged his fundamental rights had been violated by the national carrier when it failed to promote him.
These applications were taken up together in view of the preliminary objection raised by the airlines which also claimed that the acts referred to in the petitions did not constitute 'executive or administrative action' and thus the petitioner could not invoke the fundamental rights jurisdiction of the Court.
The Court observed that the jurisdiction of the Supreme Court to grant relief against any infringement or imminent infringement of fundamental rights recognised by Chapter III of the Constitution is restricted to cases of such interference by executive or administrative action.
The judgment states that the expression 'executive or administrative' action has not been defined, however, the trend of the Courts' decisions has been to construe it as being equivalent to actions of the government or of an organ or instrument of the government.
AirLanka was incorporated on 11.1.79 under Companies Ordinance as a Limited liability Company and was owned solely by the government.
However, since 30.3.90, there has been a change of this position after the government entered into a Share Sale and Purchase Agreement consequent to which 40% of its shares were sold to the UAE-based Emirates Airlines.
However, at present the Emirates holds only 26% of the shares of Air Lanka Limited. The government also entered into a Shareholder Agreement on 30.3.98 with AirLanka Limited and the purchaser Emirates(Investor) for an initial period of ten years.
In terms of the said Agreement, the management, power, control, authority over and responsibility for the Company are vested with Emirates for implementation of an approved business plan, the Court observed.
The Court held that Section 2.2.1 of the Agreement further provided that in matters over which the Investor exercises such power, control and authority, the investor should not be required to refer such matters to or seek the approval at a General Meeting of the Company or the Board of Directors.
It also held that such matters shall be validly conducted without such reference or consent and that it was also stipulated that for the avoidance of doubt, such power, control and authority are vested in the investor notwithstanding its status as minority shareholder in the company.
Air Lanka Limited changed its name to SriLankan Airlines Ltd and it was so incorporated in 9.5.98. The Board of Directors which consists of seven members, four of whom are to be appointed by the government and three exclusively by the investor.
Although the written consent of the Board of Directors is necessary for certain decisions, it has been pointed out that the decisions complained of in these cases do not come within the matters stipulated in the clause needing the prior consent of the Board of Directors and even if such decisions needed the prior consent of the Board, the court observed.
The court held that applying the test of government agency or instrumentality, it is clear a consideration of the provisions of the Amended Articles of Association and the Shareholders Agreement referred to above that the government has lost the 'deep and pervasive' control exercised by it over the company earlier.
The action taken by SriLankan Airlines cannot now be designated 'executive or administrative action' and therefore the Court upheld the preliminary objection and held that this Court has no jurisdiction to entertain the applications of the petitions. Both applications were accordingly dismissed without cost.
The sessions will be presided over by Britain's Conservative Party leader William Hague.
Mr. Wickremesinghe is expected to address the twin issues of threats prevalent to democracy in Sri Lanka and the violation of the principle of free and fair polls during the past five years.
By Sunil JayathilekeFollowing a presidential directive, Police have resumed investigations into the alleged abduction and arrest of journalist Srilal Priyantha two years ago.
Investigations are being conducted by SSP Pujitha Jayasundara as instructed by Deputy Inspector General H.M.G.D.B. Kotakadeniya after the Defence Ministry acting upon the presidential directive has instructed the Police Chief. The Sunday Times learns that President Kumaratunga has ordered the inquiry on December 21 after human rights group Amnesty International wrote to the President calling for the immediate launch of an inquiry on Mr. Priyantha's arrest. The AI has also requested a report on the matter be sent to them at the earliest.
The AI's letter comes in the aftermath of a series of appeals made by Mr. Priyantha and Sri Lankan media right groups to the international community and human rights organizations abroad.
Mr. Priyantha, a journalist at the Lakbima newspaper, was allegedly abducted in March 1999 from his residence in Nugegoda by a group of ten. He was allegedly stripped and subjected to physical assault. Thereafter his hands were tied and he was put inside a fertilizer bag and dumped near a cemetery in Kalubowila.
Mr. Priyantha made a statement from the hospital bed claiming that Assistant Superintendent Sumith de Silva was a member of the group that abducted and assaulted him. On a presidential directive, an inquiry was launched. But while the investigations were on, Mr. Priyantha was arrested in connection with five murders and three abductions during the JVP insurgency in 1988. He was thereafter taken to the CID headquarters where he alleged he was brutally assaulted by his interrogators.
The group is expected to include a minister and two deputy ministers among others.
The Sunday Times learns the move follows requests made by deputy highways minister Mahindananda Aluthgamage at a recent government group meeting.
Political sources said the counter-attack group would be led by Deputy Minister Mervyn Silva, a one-time UNPer who crossed over to the PA last year, and one of its targets would be JVP group leader Wimal Weerawansa.
They said the party leadership had given the green light for the formation of the group provided its members did not bring disrepute to the party or the government.
Deputy Minister Silva who did not wish to elaborate on the reported assignment, said that with the opposition doing nothing but criticising the government at the drop of a hat, it was only fair for the PA rankers to defend their stance and leaders.
However, steps are being taken to celebrate the 53rd independence day celebrations at provincial and district levels with religious ceremonies and cultural events.
The FMM said that it saw the action of the company as not only a violation of the normal fundamentals of the freedom of an editor but also a violation of natural justice.
The FMM was drawing reference to a correction published by the Lakbima newspaper over an article that spoke about malpractice at Sri Lanka Telecom.
Action had been filed against the former Editor Bandula Padmakumara and Journalist Buddhika Weerasinghe under Criminal defamation laws after then Telecommunications Minister Mangala Samaraweera complained to the Attorney General's department.
The FMM pointed out that the correction had been published when there was evidence with the journalists to prove the story.
"Despite all evidence available with the two journalists the Management of the company had published a correction apologising to the Minister without the consent of the editor and the journalist to satisfy the minister," the FMM said.
The FMM said the apology was carried despite pleas from the journalist asking the management not to carry it.
"We feel that it is a serious mistake to enter into a settlement without the consent of the journalists concerned in a case of this nature," the FMM said.
FMM also has highlighted the threats posed to media personnel in the past few weeks.
Describing the trend as dangerous, the FMM cites police lethargy in taking action against ex-JVP member Dr. Chandra Fernando, who allegedly threatened Island Editor. "It took several days and many media exposures for the police to act," the FMM said.
The group also cited another incident where police took no action when a journalist from the Udayan newspaper in Jaffna was attacked by students of the Jaffna University. However, the FMM pointed out that the police were quick to send a CID team to question a journalist when he exposed the police refusal to provide the Sri Dalalada Maligawa with security equipment.
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