The Political Column

17th November 1996

ETF bid adds salt to the soup

By Our Political Correspondent

The PA's privatisation policy has once again come under heavy fire from business circles after a Government-controlled institution showed some interest in taking over a state profit-making venture.

The criticism came in the wake of Government's effort to privatise Lanka Salt at Hambantota and Puttalam Salt.

When the Public Enterprises Reform Commission's (PERC) officials opened the sealed offers, a consortium led by Guruge Gems, Eswaran Brothers, Sheans Ltd and Someshi of Hambantota topped the list.. The Employees Trust Fund (ETF) came a close second.

Thereafter they had seven rounds of bidding to enhance the share price where the consortium withdrew when the ETF came out with a higher price for Lanka Salt Ltd and Puttalam Salt shares.


The party which withdrew subsequently lodged a protest with the chairman of PERC.

It states:

We wish to express our strong objection in regard to the Bid Enhancement Conference held this morning regarding Lanka Salt Ltd.

You would note our bid for a Rs. 10/= share was Rs. 131/65 at the point of opening the tender, which was considered the highest bid in terms of your evaluation process. In spite of the same we were subjected to a Bid Enhancement process to the much detriment of our interest and to the spirit of privatization policy by the Government.

We participated in the above tender believing that the Government policy is meant to encourage the private sector development and the state enterprises to be handed over to the private sector. But to our dismay we found the Employees Trust Fund (ETF) was given the opportunity to bid in the Bid Enhancement process in spite of their bid being Rs. 119/46 initially which was below our original bid. With the ETF entering the bidding process to compete with us, we found that in spite of our increasing the bid up to Rs. 141/60, we would not stand to succeed in securing our bid at the above conference.

You would note that this is much contrary to the repeated assurances given to the private sector by the Government that the private sector development is not only encouraged but given the due recognition and acceptance. It appears that this is only a lip service by the Government and all deeds and actions are both contrary and negative to the well being of the private sector.

Hence we call upon you to evaluate our bid on the basis of the highest acceptable bid coming from the private sector and award the tender as per our bid.

This we strongly believe would safeguard the interests of the Government towards meeting its appeal to the private sector in terms of Government policy where the economy is to be developed and nurtured by private enterprises and not by encouraging the state enterprises.

We await your favourable response in this regard

However it appears that the ETF is determined to go into business and invest its monies in private ventures to make the best use of it for the benefit of its contributors.

Legally there is no barrier whatsoever for ETF to do business, but the business people allege that it is like giving with the right hand and taking it away with the left.

Simultaneously, private businessmen are questioning the concept of privatisation. They are of the view that if the main objective of the Government is to attract private sector investment they should not let it go to the ETF.

The PERC is now in a quandary as to what it should do about this and it is likely now that it would offer Lanka Salt to ETF which would bring wide benefits to the working class.

While a private sector consortium is at logger heads with the ETF over the privatisation of Lanka Salt and Puttalam Salt, we hear disturbing news from Sharjah as our cricket team arrived here on Friday after our biggest debacle this year.

The Cricket team

The cricket team arrived to a cold welcome early Friday morning at the Katunayake airport.

Meanwhile, there appears to be some unpleasantness brewing in the cricket team over the replacement of Kumar Dharmasena who was injured in the preliminary round game against Pakistan.

Many people think that politics had crept in to the Sri Lankan team. The pertinent question is as to whether we are going to allow personal issues to spoil the spectacular achievements of this year.

Hulftsdorp hill

Apart from this, Shiranee Bandaranayake controversy has taken a prominent place on political circles and Hulftsdorp hill.

By Thursday last week, some lawyers were campaigning against a move by the Bar Council of Sri Lanka to pass a resolution condemning the appointment of associate law professor of the Colombo Law Faculty Shiranee Bandaranayake to the Supreme Court.

Some two hundred young lawyers, in a petition, said such a resolution should not be moved against a sitting judge of the Supreme Court.

Hulftsdorp lawyers say this was the first time that an academic had been appointed to the highest court in the land.

The normal practice is to appoint judges to the highest court from the judiciary itself, from the official bar (Attorney General's Department) or from the unofficial bar.

The main objection to Justice Bandaranayake's appointment is that she had no judicial experience which is considered essential to function as a judge of the Supreme Court.

But others argue that since the Supreme Court invariably sits with three judges, unlike the Court of Appeal, it would be useful to have a person with an academic input on the bench. They argue that when her turn comes to be the CJ she would be an experienced judge.

But other problems arise. Her appointment to the Supreme Court has given heartburns to many members of the judiciary as far as their promotional prospects are concerned.

Justice Bandaranayake who is around 38 years could continue in the Supreme Court for the next 27 years which could be an impediment in the path of many others.

She is likely to be the Chief Justice for a longer period than any others if the appointing authority does not overlook her when making the appointment of the Chief Justice in another ten years or so.

In these circumstances it is natural that the other members of the judiciary get alarmed over this appointment and this would be described as a constitutional aberration in the 1978 Constitution drafted by former President J.R. Jayewardene.

As far as Sri Lanka's Constitution is concerned the chapter dealing with the appointment of Supreme Court judges gives the President a wide range of choice unlike the Indian Constitution within which he or she should choose an appointee to the Supreme Court.

The practice of appointing Supreme Court judges is governed by tradition and convention and without an explicit legal bearing.

The Indian Constitution spells out the criteria to be a Supreme Court judge. Either the appointee should have 15 years experience as a lawyer in the bar or 10 years as a high court judge or the third eligibility is that the appointee should be a jurist of eminence.


The Sri Lankan Constitution states thus:

Ò107 (1) The Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and Court of Appeal shall be appointed by the President of the Republic by warrant under his hand.

(2) Every such Judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament, supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity:

Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one- third of the total number of Members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity.

(3) Parliament shall by law or by standing orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.

(4) Every person appointed to be or to act as Chief Justice, President of the Court of Appeal or a Judge of the Supreme Court or Court of Appeal shall not enter upon the duties of his office until he takes and subscribes or makes and subscribes before the President, the oath or the affirmation set out in the Fourth Schedule.

(5) The age of retirement of Judges of the Supreme Court shall be sixty-five years and of judges of the Court of Appeal shall be sixty-three years.

In this context, what is most important is to see how Justice Bandaranayake responds to public appeal and her role in disposing justice independently with no strings attached to any Governmental authority.

We hope the agitation against Justice Bandaranayake will end soon. But this has imparted one lesson to the Government that it should be more cautious when making appointments and in avoiding controversy as much as possible.

At this juncture it may be useful for the Government to look at the grievances of the judges too, and as to why they are reacting as they did to this appointment.

It is common knowledge that they are facing severe hardship due to an anomalous situation in their salary structures and retiring age, and it is important as a responsible Government to have a judiciary which is content to enable them to look into the grievances of others.

Take the case of Colombo's Additional District Judge, Mallika Prematilleke. She is No. 2 in the District Judges list and due to retire in January 1997 when she completes the age of 60. If Ms. Prematilleke had the opportunity to rise to the high court she will have one more year to retire (the retiring age of a high court judge is 61) and would retire with contentment and an enhanced pension. As it is today this career judicial officer is likely to be there until her retirement, and now it is evident that a young lawyer who joins as a Magistrate would have very little or no chances to go up the ladder to reach the top.

The only judge today in the Supreme Court, who came up the ladder is Justice Ananda Coomaraswamy.

On Thursday at the unveiling of the portrait of eminent lawyer Sam Kadirgamar at the law library, many judges and lawyers had an opportunity to talk to Foreign Minister Lakshman Kadirgamar. There some of them expressed their displeasure over the appointment of Justice Shiranee Bandaranayake to the Supreme Court and some said they were even considering whether to resign their posts as judges.

But Foreign Minister Kadirgamar could do little but listen to the grievance of the judges and pacify them. He was reluctant to take the matter to the Cabinet which was scheduled to meet that evening but did not meet because the President had another engagement.

In the meantime Justice Minister G.L. Peiris hosted some lawyers for a dinner the same night. Most of them who supported the appointment of Justice Shiranee Bandaranayake, were protesting over the manner in which the unofficial bar was responding to the appointment.

Members of the Bar Association of Sri Lanka were told about what happened at this dinner and were discussing at length on Friday as to what action they should take in case of an uproar at the Bar Council meeting.

But now it seems the matter will die slowly since the main opposition UNP had no interest in taking the matter to Parliament.

However the UNP was waiting for the outcome of yesterday's meeting of the Bar Council to decide on a course of action.

Besides the cricket controversy in Sharjah and, Justice Shiranee Bandaranayake's issue, the Budget has dominated the political scene this week. Both the Government and the opposition UNP have made a determined effort in Parliament to present their version of the state of the economy.

The UNP met under the leadership of Ranil Wickremesinghe at Cambridge Place prior to the Budget debate. Anura Bandaranaike, Ronnie de Mel and A.C.S. Hameed, mapped out a well thought out strategy. According to this, Mr. Hameed was to open the debate and Ronnie de Mel conclude it while the Leader would speak on Friday. It was decided to spread out the main speakers in the Party so that the momentum would be kept alive right throughout the Debate. On a fair assessment, the strategy has worked. The UNP has made some substantial contribution to the Debate.

Govt. Strategy

The Government also has a strategy. Every day the Debate was opened by a Minister and some speeches were well documented with facts and figures and persuasive arguments have been presented by them. Except for occasional rows, the Debate has had a smooth course, but the most disappointing feature is the depleted House. At times, the numbers on both sides of the House did not come up to double digits.

The UNP amidst all these, is planning to hold its annual convention next month. Mr. Wickremesinghe has decided to hold it in Kalutara. It would be recalled that the UNP postponed its Executive Committee meeting which was scheduled to be held at Kalutara on October 31, when it learnt that former President, J.R. Jayewardene was in a serious condition. The Kalutara organization under the leadership of Tilak Karunaratne had made all arrangements for the Exco meeting and was understandably disappointed at the postponement. Mr. Wickremesinghe therefore has decided to hold the sessions in Kalutara which has been welcomed by the Kalutara District UNP activists with great enthusiasm.

The UNP is also making arrangements to take up the Vote of Condolence on President Jayewardene in Parliament on Tuesday. It is learnt that the House will sit from morning till about six in the evening. The exact timing will be decided by the Party Leaders. Earlier there had been within the UNP a proposal to have two days set apart for the Vote of Condolence, and the Government had indicated its willingness. However, Mr. Wickremesinghe, after consulting the Party, has decided that the Motion should be confined to one full day's sitting of the House. The Vote of Condolence would be moved by the Leader of the House, Ratnasiri Wickremanayake in keeping with the tradition of the House and would be seconded by the Leader of the Opposition. All the leaders of various political parties present in Parliament would participate in the proceedings, to pay a fitting tribute to a leader who had led the country to a new economic order after 1977.

Go to the Defence Column
Return to the Editorial/Opinion contents page

Go to the Political Column Archive