Financial Times

Go – when the umpire says out!

Scan the newspapers these days and what do you find amidst the war and conflict that so often dominates the news? Scams, corrupt deals, Supreme Court judgments against corruption and fraud in the public and private sectors.

Even worst – scant respect for the judgment and order of the courts. Take the Dr P.B. Jayasundera fiasco: this powerful official is fined, told by the judiciary that he has been involved in a corrupt deal and that he is unfit for public office.

Does he resign from office? Yes – initially but at the request of the President stays on, continues as an advisor, travels to Beijing and Iran on official missions, and participates at top-level meetings including one last week (just before the Supreme Court hearing) on Tuesday in a discussion on GSP+. Is this blatant disregard of the legal system or just arrogance and would any other smaller individual done, nay, attempted even in a small way to test the court’s patience? On Wednesday, the Supreme Court orders him to apologise in open court – in front of a packed courtroom – and the once-powerful official is virtually brought to his knees. The court requirement for an affidavit to be furnished that he no longer holds any form of public office or any involvement in a state-controlled company signifies that this is the end of the public career of Dr Jayasundera.

Chief Justice Sarath N Silva used a cricketing parlance to drive home the point. “When an umpire rules, you must go,”’ he told counsel for Dr Jayasundera. That is indeed the essence of any judgment by a court; when you are guilty, you are guilty – unless there is recourse to appeal. The damning judgment against former President Chandrika Kumaratunga this week and many others in the public litigation arena brings home a crucial point that the people of this country are more and more relying on the judiciary to provide justice on a range of issues – even when it comes to the private sector, the LMSL case being a good example.

The courts in recent times have ruled and decided on a range of simple but problematic issues like school admissions and traffic congestion, to abuse of power by the executive and illegal deals.
The inability of the 17th amendment of the Constitution, which provides for parliamentary supremacy – instead of the executive – in the appointments of judges and high government officials including the Attorney General and Police chief, to move forward and an inept police force that answers the call of the ruling party rather than serving the people (the case of Minister Mervyn Silva is an example), has wrought havoc on governance and accountability. The way the Police chiefs in recent years have functioned is pathetic to say the least.

The lack of an effective opposition has also led to the woes of the people and again forced them to lean on the judiciary for support. For example when residents complained that their rights had been infringed by various roadblocks and security cordons in the capital, the court ordered that the obstacles be removed.

Several months back, the Defence Ministry ordered all Tamil residents who had arrived in the capital from the north where government forces are trying to ease out the LTTE from their last bastion on control, to return back to their homes saying the order was essentially because suicide bombers may infiltrate the city in the guise of residents.

Soon as the order went out, civil society groups complained to the Court and the military was asked to rescind the order. “When the government dilly-dallies on key administrative issues, people turn to the courts,” a retired civil servant said. In one case, when Grade one admissions to national schools became a problem due to a seemingly corrupt system, the court ordered the education authorities to come up with a more, people-friendly system.

Last month, teachers refused to mark test papers of a key university-entrant examination in a protest over salary anomalies. The court then ordered the government to settle the salary issue and persuaded the teachers to return to the halls to mark the papers.

The court also stepped in the recent power tariffs issue after residents appealed saying it was too much.
That the private sector – as much as the public sector – is accountable to the people, there is little doubt. The private sector is the engine of growth and without the people and communities, there can’t be a private sector. Thus all the talk of good governance, accountability and transparency must be seen to be done not only heard or just words on a paper or an annual report.

That the process of privatization has an element of corruption and abuse of power has been proven while the verdict in the Sri Lanka Insurance privatisation is due any moment now. The crisis over privatization raises the need for a more, transparent and accountable mechanism where powerful officials cannot tamper, alter or influence the process as seen in the Lanka Marine Services Ltd (LMSL) case.

The process, even in normal tender processes, should be above board. This has not been the case in the past and more fundamental rights case, if ever, in previous privatizations would certainly illustrate the corruption and misuse of power that has gone on to seal these deals.

According to Transparency International’s Corruption Perception Index (CPI), Sri Lanka is in 92nd position out of 180 countries which goes to show the level by which the public have faith in the system.
The latest irony is that the private sector which berated the government for corruption and abuse of power, is now part of this cabal as clearly seen in the judgments by the Supreme Court in the LMSL and Water’s Edge cases!

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