26th October 1997

PIL for our ills

By Mudliyar

The PIL is doing won ders in India. Though one PIL has failed to retard the growth of population, the other PIL has sent shivers down the spinal cord of corrupt politicians. The politicians have for the first time become accountable to the people. Yet corruption is rampant and is the order of the day. The PIL has made it a little more difficult for them.

The era of Indian ministers resigning when a suburban railway crashed is gone by. Politicians of the calibre of Lal Bahadur Shasthri are forgotten. No one in fact remembers, that when Shasthri died, his house had been mortgaged, his widow had no money to repay the loan, and the Government of India had to step in and redeem the pledge.

Even in Sri Lanka very few people remember the likes of M. D. Banda, U .B. Wanniyanayake, and U. P. Y. Jinadasa of the SLFP.

An impostor was arrested by bank officials for altering a cheque of Rs. 100 to make it Rs. 900 given to him on charity by Prime Minister Dudley Senanayake. The detection of the fraud was possible because the Prime Minister did not have at the time the cheque was presented one thousand rupees in his personal bank account. The bank clerk had consulted the manager and detected the clever alteration by the aid of an electronic device.

The man who vowed to eradicate corruption from Indian politics Rajiv Ghandhi was called Mr. Clean but he was later known as Mr. Bofors. With the death of Lal Bahadur Shasthri, the era of politicians who contended for power to work for the people ended, and the era of politicians who worked for personal gain came into being. There was no way in which the politician could be brought to book, with the politician being corrupt to the core.

There were serious allegations even against the Judges. The opposition moved to impeach a Judge of the Supreme Court of India. It was at the intervention of Prime Minister Narasimha Rao that Justice Cumaraswamy was saved.

Something had to be done. The judiciary took cognizance of the grave situation, which warranted urgent action. After the infamous emergency rule of Indira Ghandhi, the Supreme Court decided that enough was enough. There was no provision to invoke the jurisdiction of Court for Private Petition on public matters. Professor S.P. Sathi said the judicial process should be made more accessible to the disadvantaged sections of society to ensure judicial protections of their human rights.

The Indian Supreme Court realizing the grave situation that existed in the country, where the poor, the disadvantaged, the oppressed, the lower caste had no access to the judicial process, where the caste oppression is almost identical or worse than the racial apartheid of South Africa, the Penal Code and the Criminal Procedure Code were not operative in favour of their complaint where the religion or the Brahamin interpretation where it made the Dalits (Lower Caste) the scum of the earth; where the laws of the land especially the Criminal Procedure Code or the Penal Code did not operate in favour of Dalits.

The Supreme Court to its great credit interpreted Article 32 and 226 of the Indian Constitution liberally to entertain 'letter petition.' As a result complaints addressed even on an ordinary post card concerning wounded labourers, inhuman prison conditions, exploitation of minor workers and children, vehicular emissions and polluting industries are entertained and grievances redressed.

Public interest litigation (PIL) is the process with which a person who is not a party or directly involved in a dispute, is permitted to file a petition in Court and move for redress. In legal language a person cannot come to Court unless he has a standing (locus standi).

This word effectively prevents the poor and the oppressed, subjected to the tyranny of the oppressor who is often a person with a lot of wealth and power. In India the social system is so oppressive, that the majority would accept the fact and believe that Dalits (low caste) people do not by birthright have access to education, places of worship or other privileges. They are by birth deemed to be employed according to what their birthright dictates.

It was due to the activism of some members of the Indian Bar and the support of the Bench that social action litigation became institutionalized in India.

In Sri Lanka, weekend papers report various acts of misdemeanor, corruption and other social evils, of the bureaucracy and the politicians. Justice Minster G.L. Peiris in his desire to make the new government accountable to the public, rushed through an Act to establish a permanent commission to eradicate bribery and corruption from public life.

Dr. Peiris knew that the Government's main political pledge was to eradicate 'Dushanaya' and he had a duty towards the electorate. Transparency was his key word. He did not want the Government to fall in line with the previous Government, which according to him was corrupt to the core.

He knew that it would be extremely difficult to keep at bay the corrupt cronies and economic vultures from preying on the young MPs, who had spent enormous amounts of money to win elections. The Pajero or liquor permit would not suffice, to make ends meet.

Therefore, it was necessary to nip corruption in the bud. The establishment of a commission to arrest corruption and expanding the powers of the Bribery Commissioner were his brainchild. The UNP supported the Bill. But has the establishment of the Commission reduced bribery and corruption? Far from it. Not a politician has been produced in Court for bribery and corruption.

If the prosecution done by the bribery and corruption commission of the politicians is the criteria to evaluate how corrupt our politicians are, then we will come to the conclusion that our politicians are the most honest in the world.

This was so in India. The politicians who had been nurtured in the Gandhian tradition were supposed to be the repositories of models — honesty, integrity and selfless service to the community, but beneath the veneer of the 'dothi asceticism' and the oneness with God, there was the great humbug, the great impostor who believed in that self-aggrandizement is the meaning of the word politician.

In Bangalore a shop keeper having recognized me as a Sri Lankan as expected inquired about Sanath Jayasuriya and the second question was about corruption. He said quite insolently that your politicians, rob the people of your generation, but our politicians rob us and generations to come, that is the difference.

The Supreme Court of India did the unthinkable. When the values were taking a nose dive, the Supreme Court virtually conspired with some members of the Bar to permit the now famous letter petition to be accepted as a complaint.

Justice Kuldeep Singh, who sacrificed his career was in the forefront and was frowned upon by politicians. He was superseded by a junior as the Chief Justice, but he became the great liberator. On November 4, 1996 a minister was personally interested in allotting petrol sheds to sons of ministers.

The Oil Selection Board was influenced to have the petrol shed allocated to henchmen. The minister was ordered to pay Rs. 50 lakhs in damages. Similarly Justice Kuldeep Singh made an order for damages amounting to Rs. 60 lakhs to a person who had allotted houses to high officials like Cabinet ministers and Governors' relations.

The coup d'etat in the alleged conspiracy between the bench and bar was the Jain Hawala transaction. A writ petition addressed to the Supreme Court by one Vincent Narein alleged that the Government agencies, such as the CBI (Central Bureau of Investigations) and revenue authorities had failed to perform their duties, legal obligations as much as they had allegedly failed to properly investigate matters arising out of seizure of the so called Jain Diaries' in certain raids conducted by the CBI.

The diaries had entries of the names of the recipients of large sums of monies obtained illegally, being given to top politicians both in the Government and the opposition. Most of the politicians were exhorting to the public that accountability and transparency were the sine qua non of public life. When they came to power the corrupt government and politicians would be exposed and stripped and denied of all the ill-gotten wealth But alas the so called champions of transparency were the worst culprits.

The revelations of the Jain Hawala scandal and other probes rocked not only the Government but even the opposition. Prime Minister Rao fell from grace. The Congress Government lost the elections and the true colours of the ascetic politicians and the Ghandian philosophers were exposed.

The myth that people from a wealthy background and Brahmin caste or the aristocracy would not indulge in bribery and corruption like 'Dalit' clerk who hailed from a scavenging family was proved to be untrue. The aristocratic pedigree of a politician did not in any way make him less greedy for money, in fact often the nobility were the worst offenders of this trait.

The Supreme Court of India directed that investigations into every accusation made against every person on a reasonable basis be conducted and completed expeditiously irrespective of the position and status of that person.

This was imperative to retain public confidence in the impartial working of the government agencies, Justice Verma contended.

Professor G.L Peiris who has maintained his reputation as an honorable politician will agree with the sentiments expressed by Justice Verma.

We in Sri Lanka cannot isolate ourselves from what is happening in India and Pakistan. It is time that we copied chapter and verse from these Indian judgments and legislated for distinct provisions to permit the independent forthright Supreme Court of this country to inquire into allegations of corruption which are levelled against the highest in the land.

The Indian fight against corruption has spread to Pakistan, and the people there are petitioning the Supreme Court requesting the intervention of the Supreme Court to redress their grievances.

I remember how the ex Prime Minister Benazir Bhutto lamented about the dismissal of her Government by the President of Pakistan when she attended 'Prathibha Pranama,' the felicitation ceremony of Anura Bandaranaike.

It was not a secret when she was in office, she used all her powers to muzzle the independent judiciary. She appointed persons to various Courts who had either previous convictions or supporters of her PPA Government. She felt that the Judiciary which is not subservient to the democratically elected Government is an obstacle.

She publicly exhorted that the people of Pakistan have voted her to power and some Judges who had alienated themselves from the masses and who have not political vision are obstructing her from fulfilling the solemn pledge given to the people. The President of Pakistan summarily dismissed her Government and alleged that her Government was corrupt, abused its authority, tampered with justice and inveigled the Judßßßߺiciary to give judgments in her favour.

Ms. Bhutto petitioned the Supreme Court which dismissed it. Elections were held and she coaxed the voters and asked them to return her to power. Nawaz Sherrif for the first time in the history of Pakistan won a landslide majority. Now she is aghast at the misdemeanours of her husband when Switzerland disclosed millions of dollars the Bhuttos have allegedly ripped off from the country.

What's happening in Pakistan and India must be true or even worse in the case of Sri Lanka. It was only recently that some high officials in the US Government branded Sri Lanka as corrupt. Cocktail circuits are buzzing with gossip about the latest rip-offs and who is making the most amount of money from the war.

According to the Midweek Mirror even the Cricket Board has not been spared of scandal. But thanks to the integrity of some Ministers of this Government, especially Dr. G.L. Peiris and Lakshman Kadirgamar, the government has escaped the wrath of loquacious public and investigative journalists.

So it is in the interests of the future generation that powers are given to Commissions appointed by the Government. But will they be bold enough to point a finger at the government?

Therefore it is extremely necessary to follow the example of the Indian sub continent to bring suitable amendments to enable anyone to petition to the Supreme Court against. As much as law is no respecter of persons no one is also above the law. If the Government fails to utilize the lead given by the Indian and Pakistani Supreme Courts, the day will come when the Supreme Court will be forced to accept public interest litigation to save the country from inveterately corrupt politicians.

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