Rt Hon Patricia Scotland QC
Commonwealth of Nations
27th July 2017
The case of Sri Lanka – a member of Commonwealth of Nations
Intimidation of judges leads to failure of the Rule of Law & independence of judiciary
British aid granted to combat corruption go waste
I am a British citizen, Attorney-at-Law and Solicitor currently practicing law in Sri Lanka, my native country, and I forward this communiqué, as I am very much concerned about the breakdown of Rule of Law and the interference in the administration of justice in the Republic of Sri Lanka by the Executive and Legislature.
I would be returning home the end of July 2017 and I shall appreciate if an interview is afforded to discuss the issues mentioned herein foremost subject being the waste of British tax-payer money spent on the corrupt anti-graft body in Sri Lanka, namely the CIABOC (Commission to Investigate Allegations of Bribery or Corruption) created by law to combat government corruption.
You may be undoubtedly aware that the British Public is outraged after learning that the government has been spending more than £1 billion taxpayer-money annually as British aid on corrupt governments in the Third World, where such aid are wholesale abused and go waste. Sri Lanka is no exception in this regard, where a substantial number of real criminal elements occupy office as MPs, and Cabinet Ministers hindering good governance.
British departure leads to failed governance
Sri Lanka was conferred self-rule in 1948 with no foreign debt inherited from the British. Since then this Island Nation has been devastated by corrupt local politicians and has gradually lost its economic independence with foreign debt liability mounting to an equivalent of 79.30 percent of the country's Gross Domestic Product, whilst Sri Lanka rupee has been devalued from Rs 1.50 to 1 British pound in 1948 to Rs 202.02 in 2017. In the final analysis the major contributory factor for this failure is the denial of judicial independence and the Rule of Law that leads to mass scale corruption.
Today, the new government functioning under President Maithirpala Sirisena and Prime Minister Ranil Wickramasinge is under scrutiny here and abroad, concerning its handling of major corruption cases involving the Legislature, Executive and the Judiciary during the previous Mahinda Rajapakse regime (2005 – 2015) and also under its own administration.
Extant President and Prime Minister came to power after pledging good governance, judicial independence and the Rule of Law
During their campaign in the run up to 2015 General Election, both the President Sirisena and Prime Minister Ranil Wickaramasinghe pledged the people of Sri Lanka and the world community of their commitment to establish good governance, rule of Law, and the independence of the judiciary, which are the cornerstones of the Commonwealth of Nations.
Presidential Candidate Sirisena pledges to address corruption
President Sirisena’s election manifesto demonstrated its commitment to deal with the government corruption decisively as follows.
“It is true that there was corruption and fraud always. However, the extent of corruption in Sri Lanka in the last few years is unprecedented and unheard before. Now the time has come when all main political parties could be united for a joint program to build the country”.
Prime Ministerial candidate Ranil Wickramasinghe’s pledge during the election
Prime Minister Wickarmasinghe’s United National Party (UNP) pledged the people to restore the judicial independence destroyed by the previous Mahinda Rapapakse regime (2005 – 2015) and to address government corruption. The UNP election manifesto dubbed, ‘a five points broad program’ pledged people to create a new country within 60 months, based on Good Governance by eradicating corruption with a new Police Act introduced to realize the goals of the new government.
President Sirisena pledges the world community to root out corruption
In August 2015, the new Executive President Maithripala Sirisena attending the World Anti-Corruption Summit held in London on 12th May 2016 declared his commitment to combat all forms of corruption as follows.
‘… Corruption is one of the factors that promote political violence and other forms of human rights abuses. Sri Lanka went through such a stage during the previous administration. The people reacted strongly against corruption by changing the corrupt administration by the power of the ballet in January 2015 at the Presidential election and again at the Parliamentary election in the August 2015…’
‘…We were elected to office on the policy platform of democracy, good governance and rule of law. Therefore, we consider our prime duty is to root out of corruption from the country. We are happy that the summit proposes to establish an International Anti-Corruption Centre, all of us as leaders need to act collectively to strengthen our own law enforcement agencies to track the corrupt and recover the proceeds of corruption…’
British government takes Sri Lankan government into confidence and assures financial assistance to Corruption Commission (CIABOC) to combat corruption
As a consequence, Prime Minister David Cameron, on 27 November 2015, at the Commonwealth summit in Malta pledged Sri Lankan President Sirisena British assistance to restore the Rule of Law as follows.
“Britain is committed to standing up for Sri Lanka with £6.6m funding is part of a long-term UK commitment to supporting stability and prosperity in Sri Lanka."
As promised the British Government offered to work directly with Sri Lanka’s Commission to Investigate Allegations of Bribery or Corruption (CIABOC) to combat government corruption. British officers from the Serious Frauds Office (SFO) were then deployed to train the investigators in the CIABOC with the Head of the British Diplomatic Service Sir Simon McDonald and Secretary at the UK Department for International Development Mark Lowcock had been involved in talks with the CIABOC in June 2016. The Deputy British High Commissioner in Sri Lanka Laura Davis said that the UK would spend Rs 15 million or approximately three quarter of a million pounds over the next three years on the subject.
CIABOC fails in its duty and lets down the British Government
There have been a number of high profile corruption cases referred to CIABOC during the past two years but nothing has been materialized to set the criminal law in motion as promised by the new regime. They failed to make any progress in its drive to combat corruption and lost the confidence of the people here and abroad.
The best example is the abuse of the tax-free car permits for unjust enrichment by those occupying the public office in the Legislature and the Executive, more fully described below.
The Infamous tax-free permit scheme for MPs and Cabinet Ministers
The previous Rajapakse regime (2005 -2015) had designed a tax-free car permit scheme for the MPs and Ministers in the Cabinet to defraud the government tax revenue for unjust enrichment. In Sri Lanka tax component of some vehicles is over 300% of the CIF value and there was a huge demand for high valued tax-free car permits issued to MPs by the former Rajapakse regime.
Presenting the maiden fiscal policy statement of the new Sirisena-Wickramasinghe regime on 20th Nov 2015, the Finance Minister Ravi Karunayake referred to this ‘tax-free car permit scheme’, and pledged to abandon such wrong fiscal policies with immediate effect as follows.
‘… Honorable Speaker, the vehicle permit schemes have been politicized and misused and have created a huge revenue loss over Rs 40 billion a year to the Government. I propose to abolish all the vehicle permits granted under different schemes, including to Parliamentarians. However, I ensure all government officers will be financially compensated for the benefit foregone. Further, all the vehicles purchased to the Government will be subject to all applicable taxes and necessary allocations will be provided in the Budget...’
New regime backtracks and re-commences the tax-free car permit schemes violating the pledge made to the people
On 03rd Feb 2016 Sirisena-Wickramasinghe regime took a policy decision to resume the issuance of the tax-free car permits to all 225 MPs, the fraudulent scheme that had been condemned by it. This is a complete betrayal of trust placed in it by the people of Sri Lanka and the world community.
It is very common that these permits go up for sale in the open market with adverts published in the print and electronic media with a price tag of 25 million rupees for each permit. The buyers were assured permission to import luxury vehicles against them subjected to zero rate of levies, whereas the actual tax payable was over Rs 33 million rupees and in some cases went up to over Rs 40 million.
Already over 100 MPs that include almost all TNA MPs, who demands for self determination, and Cabinet Ministers have sold their tax-free permits to private companies and individuals who have imported luxury vehicles and straightaway registered such vehicles under their respective names.
It is important to mention that the extant President Sirisena too has imported a luxury vehicle on 19th Sep 2016 – Customs Declaration ref: 3998) in his personal capacity, personifying himself as an MP defrauding the government revenue of Rs 33,457,500.00.
(Customs certified authenticated data about vehicle imported by MPs marked X1 & X2 enclosed)
Corrupt Parliamentarians and Cabinet Ministers reported to Corruption Commission (CIABOC)
This gross betrayal of people by the lawmakers and the Cabinet of Ministers was reported to the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) on 26th Aug 2016 to prosecute them for the commission of the criminal offence of corruption that attack 10 years imprisonment. Yet, CIABOC failed to initiate any action whatsoever to investigate and prosecute those wrongdoers (MPs, the Cabinet of Ministers and the Executive President). This is in spite of British guidance and assistance provided to the CIABOC to combat corruption.
CIABOC concedes practice of corruption as a government policy and avoids investigation
The CIABOC completely avoided inquiring into the matter and conceded that the corruption involving the tax-free permit as a part of government policy and demonstrated its impotency to enforce law against those who hold public office in the Legislature and the Executive.
In response to an identical complaint made to CIABOC on the abuse of tax-free car permit for unjust enrichment in Dec 2014, it had informed that the said losses had been incurred due to the implementation of the Government policy. Since then CIABOC never deviated from its flawed decision of exonerating the corrupt elements holding public office in the Legislature and the Executive.
(CIABOC letter rejecting the complaint dated 04th March 2015 marked X3 is enclosed)
British trained CIABOC charged before the Supreme Court for abandoning its duty
The aim of the British Government was to train the CIABOC to fight corruption on par with SFO with no fear or favour. And as the CIABOC failed to meet this expectation it was charged before the Supreme Court (SC/Writs/7/2016) on 19th Dec 2016 by me for its failure to enforce the law against the corrupt MPs and Ministers and requesting the Court to direct the CIABOC to conduct an independent and credible investigation into this defrauding of public funds by the criminal elements occupying public office as MPs and Cabinet of Ministers. The said Petition was supported with overwhelming evidence such as the detailed schedule of Names of MPs and Cabinet Ministers who have sold their permits and the names of companies and private individuals who have imported expensive vehicles under these permits and registered under their names.
CIABOC deceives the Court for the 2nd time and betrays the UK Government
When the Court took up the matter on 16th March 2017, the Attorney General informed the Court that CIABOC had already initiated an inquiry into the corruption complaint dated 26th Aug 2016. However, since the Petitioner challenged the Attorney General’s statement as a deliberate act of deception the case was re-fixed for hearing on 15th June 2017. Meanwhile on 23rd March 2017, the CIABOC was urged by the Petitioner in writing as to what steps to be taken before the next date of hearing and to inform the Court accordingly.
When the case was taken up for support on 15th June 2017 before the Supreme Court, after a lapse of another three months, the Attorney General, appearing for the CIABOC once again made a manifestly false statement to the Supreme Court that the CIABOC had already initiated an independent and credible investigation into the said revenue fraud, whereas no such investigation whatsoever conducted and without producing any tangible evidence to substantiate its claim.
Despite the rejection of the Attorney General’s statement by the Petitioner, exposing the impotency of the CIABOC, the Supreme Court accepted the Attorney General’s version and dismissed the case.
It is absolutely unacceptable for the people of Sri Lanka and the International Community to disregard a corruption case of this magnitude (7 billion rupee revenue fraud) by the Judiciary aided and abetted by the anti-graft body CIABOC, and the Attorney General. This demonstrates the incapacity of the Judiciary and the CIABOC to deal with serious corruption cases, involving the corrupt elements occupying office in the Executive and the Legislature. It is viewed that the primary reason for this unacceptable state of affairs is the absence of an independent judiciary, which could dispense justice free from executive interference.
As noted above, this is not what the international community headed by the British Government and the people of Sri Lanka expected from the Supreme Court and the CIABOC when placed their confidence in the Sirisena-Wickramasinghe administration to combat corruption.
Abuse of Presidential immunity to commit a serious Constitutional Fraud in 1988 allowing defeated candidates to enter Parliaments as MPs
Unlike in other leading democracies, such as UK and USA, Sri Lanka’s Constitution (Article 35) grants its head of the state a total immunity as follows.
“ Whilst any person holds office as President, no proceeding shall be instituted or continued against him in any court or tribunal in respect of anything done or committed to be done by him either in his official or private capacity “
The abuse of this Presidential immunity and the damage it had caused is such that even the people’s sovereign rights protected by the Constitution have been meddled with it. Probably the best example in this regard is the usurpation of people sovereign right to franchise in 1988 by the President J R Jayewardene, completely circumventing the due process established by the Constitution. The law provides that franchise conferred in the people cannot be usurped except people themselves surrender it by way of a mandate given at a referendum. The Constitution provides any such Bill enacted without adhering to the due process shall not become construed as an amendment to the Constitution [Article 82(6)].
14th Amendment to the Constitution
On the initiative of the then President Jayewardene a provision (Article 99A) was enacted to the Constitution through the 14th Amendment, with no mandate obtained from the people usurping people’s right to franchise, allowing political party secretaries to appoint defeated candidates as MPs. The abuse of office by the Executive President in this particular case is truly unbelievable, as he had abused the office to deceive the house of Parliament.
There had been two Bills circulated in the Parliament to amend the Constitution (14th Amendment) and despite the Bill approved by a Parliamentary Select Committee and the Parliament (defended by the Prime Minister R Premadasa who presented the Bill) the President had abused his executive power to have a different Bill endorsed by the Speaker certified by the Speaker, made into law permitting defeated candidates to enter the Parliament.
Request for fuller Bench to hear the matter of National Importance refused
This provision of law enacted fraudulently (Article 99A of the 14th Amendment) remains a part of the Constitution and after the General Election - 2015 the appointment of 10 defeated candidates by respective party secretaries was challenged before the Supreme Court (SC/Writs/05/2015) by me with a special request made to the Chief Justice to appoint a fuller bench to hear and determine this case, within two months as specified by law (Article 104 H).
However, when this fraud was challenged before the Supreme Court (SC/Writs/05/2015) the then Chief Justice, K Sripavan and thereafter the incumbent Chief Justice Priyasath Dep declined the application made under the Constitution [(Article 132 (3) (iii)], seeking appointment of a fuller bench to hear this case of paramount national importance and as a result both of them have been charged for judicial corruption for abuse of public office of Chief Justice, not for pubic good but to confer a benefit or favour to themselves and/or to the Executive.
Since filing this case, now it is almost two years since appointing defeated candidates to the Parliament by party secretaries but this matter not even been allowed to presented before the Court for almost two years.
The denial of full bench of hearing by the Supreme Court with no reasons given has defeated the purpose of initiation of this case in the public interest and in this background I have decided to make an application to Court to abate the proceedings.
Denial of Independence of the Judiciary by the previous regime headed by the President Rajapakse paved way for breakdown of the Rule of Law
The Constitution of Sri Lanka had provided for Constitutional Council (CC) to recommend suitable appointments to high profile public offices including judges to the Superior Court System. However, this Constitutional Council was removed by the then President Mahianda Rajapakse to keep the Judiciary under Executive control, with appointment of judges of his choice to the Judiciary through the 18th Amendment to the Constitution. He also brought the Office of the Attorney General too under his direct control and began appointing public officers, enlisted in that Department as judges to the Superior Court System, compromising the judicial independence.
The extent of damage caused to the judiciary by these people are such that the Chief Justice, Mohan Peiris appointed by the former President Rajapakse pleaded with the Prime Minister of the new administration, seeking favours to remain in office, promising to deliver judgments favoring the Executive and to appoint judges as per the wishes of the new regime. This, sordid conduct of the Chief Justice was exposed by the Prime Minister himself in the Parliament bring in the entire Judiciary into disrepute.
(A copy of the statement made by the Prime Minister in this regard on 30th Jan 2015 reported in the Parliamentary Hansard marked X4 is attached herewith)
The new regime too continues with the same controls in place with impotent Constitutional Council reintroduced through the 19th Amendment
The new regime through 19th Amendment to the Constitution reestablished the Constitutional Council but deliberately denied its credibility and independence by appointing 7 MPs to the 10-member Constitutional Council. This was purely to keep a firm grip particularly on the appointments of judges to the Superior Court System. Previously there were only 3 MPs in the Constitutional Council and the rest were appointed from independent people with proven integrity and credibility, who had the controlling power in it, assuring greater degree of judicial independence.
Present regime continues to intimidate the judiciary
The present Sirisena-Wickramasinghe regime too continues with the intimidation of judges and interfering with the administration of justice totally violating the pledges made to the people. The extent of the abuse is such that the Executive and the Legislature collectively deceive the constituents that the parliament is supreme over the other organs and claims that the judiciary is trying the usurp parliament’s judicial power. This is with no regard or respect to the doctrine of separation of power. Recently, on 07th July 2016, the Prime Minister Ranil Wickramasinghe, went on to make a direct attack on the Judiciary claiming that judiciary is acting like a dictator and violates basic tenets of the Constitution.
(Relevant part of the Prime Minister’s speech made in the Parliament marked X5 is enclosed)
Breakdown of rule of law compels the UNHRC to intervene
The abuse of people’s sovereign rights by the Executive and Legislature as discussed in this document has effectively prevented the judiciary from discharging its constitutional duty to protect, vindicate and enforce the people’s judicial power (Article 105 of the Constitution), causing the collapse of responsible representative governance in the Republic of Sri Lanka. This situation has compelled the constituents to seek remedial action from the United Nations Human Rights Council and the government of Sri Lanka has been forced to co-sponsor a Resolution adopted by the Human Rights Council on 1 October 2015, conceding that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system.
Latimer House principles emphasize the Independence and Accountability of the Judiciary
Although Sri Lanka is a member of the British Commonwealth, it fails to adhere to the Latimer House principles which emphasize the need for Independence and Accountability of the Judiciary and underline the importance of an independent, impartial, honest and competent judiciary, which is integral to upholding the Rule of Law, engendering public confidence and dispensing of justice.
These principles further stipulate that the judiciary shall be accountable to the Constitution and to the law, which the Judges must apply honestly, independently and with integrity. The principles of judicial accountability and independence underpin the public confidence in the judicial system and the importance of the judiciary as one of the three pillars upon which a responsible Government relies.
Jeremy Corbyn, the Leader of Opposition stresses the need for Sri Lanka’s adherence to UN Resolution
In this background, the Leader of Opposition in the House of Commons, Jeremy Corbyn, making a special statement on Sri Lanka on 21st July 2017 declared that the British Government should continue to encourage the Sri Lankan government to deliver all their commitments under UNHCR Resolution 30/1 stressing that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system.
UN Special Rapporteur in clear terms affirms the need of independence of the judges and proper administration of the justice
The report submitted to the UN Human Rights Council (UNHRC) in April 2016 by Monica Pinto, the UN Special Rapporteur on the Independence of judges and Lawyers after her visit to Sri Lanka clearly identifies the need for the independence of legal system and emphasizes the need for more transparent administration of justice to regain the people’s trust and confidence in the justice system.
Bar Association of Sri Lanka expresses its concerns over the judiciary under siege
The Bar Association of Sri Lanka, the professional body of lawyers, on 28th Nov 2015 affirmed that over a period of time the existing judicial system in this country has not met the confidence of the people and that it is an undeniable fact that over a period of time the independence and credibility of many of these institutions have suffered, resulting in an erosion of the confidence in the system as a whole.
Supreme Court is under duty to take due cognizance of matters of National Importance
The Supreme Court of the Republic of Sri Lanka is required to act strictly according to the rule of law as the protector of fundamental rights of the citizens, their sovereign rights and also as a guardian, to keep necessary checks upon constitutional transgressions by itself or other organs of the government. And as the watchdog of the Nation, it shall not permit itself or the other organs of the government, the Executive and the Legislature, to act arbitrarily but to act reasonably, in the public interest and strictly according to law. And as per Lord Denning, ‘judges cannot afford to be timorous souls and they cannot remain impotent, incapable and sterile in the face of injustice’
However, several judges in the Supreme Court of Sri Lanka have let down the expectations of the people, and already 4 former Chief Justices and the incumbent Chief Justice have been charged for abuse of office to confer benefits or favors for themselves or the Executive.
It is also pertinent to place on record that 5 judges of the Supreme Court in 1988 collaborated with the Executive President J R Jayewardene to usurp the people’s sovereign right of franchise to the Executive with no mandate obtained from the people at a referendum.
The need to take measures to assure protection of lawyers in Sri Lanka, a member in the Commonwealth of Nation
Lawyers performing public interest litigation are protected by Latimer house principles and UN Basic principles on the Role of Lawyers as well. Both these instruments require the member states to protect the interest of lawyers who perform their duty free from an intimidation, hindrance, harassment or improper interference and shall have the right to take part in public discussion of matters concerning law, the administration of justice and the promotion and protection of human rights without suffering professional restrictions and obstruction from functioning independently by reason of their lawful actions.
Right now, being solicitor and a citizen of the UK I practice law in Sri Lanka more than 9 months a year and my most passionate area of practice is the public interest litigation, an area most lawyers are dare to engage in practice due to powerful criminal elements that control the Parliament and the Executive. My life in Sri Lanka is not safe due to the sustained pattern of intimidation and threats directed at me, which I have already reported to the Inspector General of the Department of Police (IGP). I should say that there is a kind of a fear psychosis spread across the society, making people refrain from coming forward and challenging these serous abuses of power by those who hold office in the Legislature and the Executive.
(a copy of the written complaint made to the IGP dated 02nd July 2017 marked X6 enclosed)
The absolute need for compelling the government to free judiciary to perform its constitutional duty for the people
In this backdrop it has become an absolute necessity to compel the Government of Sri Lanka to free the judiciary from all forms of intimidation and interference by the Executive and Legislature, without which the judiciary cannot be made accountable in the administration of justice strictly according to the rule of law, which is essential to build the confidence in the people in the justice system in keeping with its obligations under the UN Resolution (A/HRC/Res/30/1) that envisages the observance of the Commonwealth Latimer House Principles with total adherence to the doctrine of separation of power.
In view of the above it will be greatly appreciated if an interview is afforded to discuss the issues mentioned herein as requested benefiting general public in both Sri Lanka and the Great Britain.
Signed :- Nagananda Kodituwakku
Attorney-at-Law (Sri Lanka) & Solicitor (UK) and Public Interests Rights Activist
Copies: 1. Prime Minister, Hon Teresa May, MP (Con)
2. Leader of Opposition, Hon Jeremy Corbyn, MP (Lab)
3. Commonwealth Association of Lawyers