Financial Times

Attempt to block streams of justice

By Mohan Mendis

It was sad to read the news item in the Sunday Times business pages last week, reporting the content of the remarks made by an outgoing chairman of a leading business chamber concerning public interest litigation under fundamental rights enshrined in our constitution for very good reason.

His expression of alarm at the acceleration of these actions in the recent past and the effect it would have on investment is unexplainable. It would be interesting for your readers to know, that this type of litigation which former Chief Justice P.N. Bhagwati started in India has had a profound effect for the better in our neighbouring country and action is initiated in the Supreme Court, on the mere complaint in the form of a letter addressed by a member of the public. We, including Chambers of Commerce and the one that Mr. Jayampathi Bandaranayake represents, have long been complaining about the complexities and delays in other forms of litigation which results in apathy in the minds of the public where justice is concerned, due to the slowness of delivery.

I do not believe that the person quoted, having been a career executive for more than 40 years, rising to the pinnacle of office any executive could aspire to, and then occupying a position of leadership and importance in a business group styling itself as the premier business chamber in the country, is unaware of the increased levels of fraud, corruption and lapses in governance in recent times. The public sector/private sector collusion in the series of cases that are now coming out is shocking and deplorable.

Thanks to the vigilance and courage of a handful of public interest activists, monopolies have been broken, taxes due to the revenue recovered, fines imposed and property belonging to the people restored to their rightful owners. Billions of hard earned dollars could have been lost due to the inaction of people in high places not pointing out earlier, the dangers of stopping what can only be described as a rip-off at the expense of a long suffering people. As in the case of heinous crimes, time limits should not preclude these issues coming before courts of law.

Speaking of people in high places it was also reported last Sunday, that the Attorney General objected to the request made to court by the petitioner, for disclosures to be made by persons who would and should know more and throw light on the circumstances leading to the transactions in the infamous hedging deal. Notice being given was vehemently opposed. Reading the affidavit of Ms. Kimarli Fernando was refreshing and restored my hopes for this country, that we may still have ways of restoring a higher standard for the conduct of business in this land. We need brave people to come out and speak against wrongdoing and some form of protection is necessary for those who do have the courage speak out. The Chief Justice had ruled that notice be given if not for which the truth may have never come out in public.

Thanks to the new Act, “whistleblowing” is provided for in the law now applicable to companies, but why has it not been used so far? We need to find out? The discussion in business chambers when the new law came out was not to welcome the several positive features taking us forward to a higher level of governance but to point out the many features that these very private people found hard to cope with.
Honouring, contractual obligations is sacred no doubt but in the sequence of events leading up to many of these transactions it would appear that there has been undue haste, influence and personal interest as the motivation and driving force. Any person who has a basic knowledge of the essential ingredients for a valid contract would appreciate from the facts in many of these cases that are now being revealed, that there was infact no valid contract.

There was a time no doubt when the “family silver” had to be sold in a hurry. A certain degree of mistakes, let us say was unavoidable. After all we needed the money in a hurry to arm ourselves against terror and to contend with the most virulent hatred that ever corroded the breast of this land. To take advantage of such a situation, to rob the people of this country already strained and stressed under the curse of terrorism, by surreptitiously robbing public property amounts to the highest degree of treachery.
Thanks to the enlightened leadership, a determined military command and the courageous men and women who fought in our front lines often at the expense and/or risk of their lives, we are now in a position to conduct our business with a degree of normalcy.

Having achieved this miracle, it is heartening to find the government directing its attention to the other evils which have meanwhile befallen our land and to which less attention was possible before. In the short time since mid May this year, drug traffickers have been busted, notorious criminals dealt with, the rice cartel blown out and the fruit vegetable mafia in Dambulla busted, chains of supply from the North and East are being restored and porn dealers snuffed out.

It is at such a time as this that I find the words of the business leader most inappropriate and disconcerting. We should be welcoming the exposures of wrongdoing in high places and as a responsible chamber participate in the efforts to clean up our act. Contrary to the claim that these exposures will deter investment, it is to places with higher levels of governance, protection from fraud and corruption and a ground that is level for all that serious investors will be attracted to.

The case of Singapore, often quoted by the Ceylon Chamber of Commerce, was full of pirates, bandits and criminals in the 1950’s. It was a haven for the underworld. These gangsters including business tycoons who did not play by the rules were severely dealt with. Why then did investment pour into that small island, after the clean up, to make it what it is today? They still catch businessmen who fail to abide by the code and deal with them very severely. The naming and shaming takes place swiftly and in public.

“When I saw the effect that corruption and kick-backs were having on our businesses and our inability to compete, I determined that it had to stop. Nothing so encourages inefficiency and mediocrity and discourages talent and endeavor”
-Lee Kuan Yew

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