Friday Apr 19, 2024
Friday Apr 19, 2024
Tuesday, 4 February 2020 00:34 - - {{hitsCtrl.values.hits}}
Central Bank of Sri Lanka
Attempt to commit, and abetment of, an offence under this Part
25. (1) A person who attempts to commit or to cause the commission of an offence under this Part of this Act and in such attempt does any act towards the commission of that offence shall be guilty of an offence and shall be tried in the same manner, and shall upon conviction be liable to the same punishment, as is prescribed by this Act for the first-mentioned offence.
A person who abets an offence under this Part of this Act shall be guilty of an offence and shall be tried in the same manner, and shall upon conviction be liable to the same punishment, as is prescribed by this Act for the first-mentioned offence. In this Subsection the expression "abet" shall have the same meaning as in Sections 100 and 101 of the Penal Code.
When a person offers a gratification
88. For the purposes of this Act a person offers a gratification if he or any other person acting with his knowledge or consent directly or indirectly gives, affords or holds out, or agrees, undertakes or promises to give, afford or hold out, any gratification to or for the benefit of or in trust for any other person. 
When a person solicits or accepts a gratification
89. for the purposes of this Act –
a person solicits a gratification if he, or any other person acting with his knowledge or consent, directly or indirectly demands, invites, asks for, or indicates willingness to receive, any gratification, whether for the first-mentioned person or for any other person, and
a person accepts a gratification if he, or any other person acting with his knowledge or consent, directly or indirectly takes, receives or obtains, or agrees to take, receive or obtain any gratification, whether for the first-mentioned person or for any other person.
“Public servant" includes every officer, servant or employee of the Crown, or of any local authority, or of any scheduled institution, every juror, and every arbitrator or other person to whom any cause or matter has been referred for decision or report by any court or by any other competent public authority; "scheduled institution” means any such board, institution, corporation or other body as is for the time being specified in the Schedule to this Act.
Chapter 26 – Bribery Act – *Part V – Offences Other Than Bribery Corruption [§7, 20 1994.] (Section 70)
Any public servant who, with intent, to cause wrongful or unlawful loss to the
Government, or to confer a wrongful or unlawful benefit, favour or advantage on himself or any person, or with knowledge, that any wrongful or unlawful loss will be caused to any person or to the Government, or that any wrongful or unlawful benefit, favour or advantage will be conferred on any person –
does, or forbears to do, any act, which he is empowered to do by virtue of his office as a public servant;
induces any other public servant to perform, or refrain from performing, any act, which such other public servant is empowered to do by virtue of his office as a public servant;
uses any information coming to his knowledge by virtue of his office as a public servant;
participates in the making of any decision by virtue of his office as a public servant;
induces any other person, by the use, whether directly or indirectly, of his office as such public servant to perform, or refrain from performing, any act, shall be guilty of the offence of corruption and shall upon summary trial and conviction by a Magistrate be liable to imprisonment for a term not exceeding ten years or to a fine not exceeding Rs. 100,000 or to both such imprisonment and fine.
Registered Stock and Securities Ordinance
Issue of registered stock, promissory notes, bearer bonds and treasury bonds for the purpose of raising authorised loans
2. (1) ….the Minister in charge of the subject of Finance may from time to time raise such sum or any part thereof under the provisions of this Ordinance in any one or more of the following modes:
by the creation and issue of registered stock;
by the issue of securities in the form of Government promissory notes;
by the issue of securities in the form of bearer bonds;
by the issue of securities in the form of Treasury bonds 
Registrar to make necessary arrangements
5. Upon the publication under Section 4 of an Order of the Minister in charge of the subject of Finance in respect of any loan to be raised under this Ordinance, the Registrar may, subject to the provisions of that Order and to such further directions as the Minister in charge of the subject of Finance may issue in that behalf, make all such arrangements as may be necessary to raise that loan upon the most favourable terms that can be obtained.
Restrictions on purchase of stocks and securities
5A. (1) Any application or bids for the purchase of registered stock or securities may, having regard to the interests of the national economy, be restricted to primary dealers and designated non-dealer bidders.
(2) Without prejudice to anything contained in this Ordinance particularly the provisions of Sections 21C, 21D, 21E, and 21F, the Central Bank shall regulate, supervise and monitor the primary dealers and the designated non-dealer bidders with respect to their transactions in Treasury bonds issued in the form of written certificates.
Registered Stock
Register of stock
6. The Registrar shall keep a register in respect of each issue
Delegation of powers of Minister in charge of subject of Finance
56. The Minister in charge of the subject of Finance may by Order published in the Gazette delegate to the Secretary to the Treasury any power conferred on the Minister in charge of the subject of Finance by this Ordinance subject to such conditions, reservations and restrictions as may be specified in the Order.
Offences
56A. (1) Any person who—
fails to comply with any provision of this Ordinance or any regulation, order, or direction given thereunder;
furnishes for the purposes of this Ordinance any information which is, or any return the contents of which are, to his knowledge false or incorrect;
with intent to deceive—
makes or causes to be made a false entry, or
omits to make, or causes to be omitted, any entry; or
alters, conceals or destroys, or causes to be altered, concealed or destroyed, any entry, in any of the records of the Central Bank, or in any books, records or accounts of any direct participant, including any dealer direct participant, or any primary dealer, shall be guilty of an offence under this Ordnance.
(2) Any person guilty of an offence under this Ordinance shall be liable on conviction after summary trial before a magistrate, to imprisonment for a term not exceeding five years or to a fine not exceeding Rs. 10 million or where the offence has resulted in monetary loss or monetary gain or a loss or gain which is quantifiable in monetary terms to any person, to a fine equivalent to twice the value of such loss or gain or to both such imprisonment and fine.
The Central Bank may, with the consent of Court, having regard to the circumstances in which an offence under this Act was committed compound such offence for a sum of money not exceeding Rs. 5 million, or where the offence has resulted in monetary loss or monetary gain or a loss or gain which is quantifiable in monetary terms, to any person, for a sum of money equivalent to one and a half times the value of such loss or gain.
The compounding of an offence under this Section shall have the effect of an acquittal.
56B. Where the person convicted of an offence under the Ordinance is a body corporate, every person who at the time of the commission of the offence was a director or an officer of the body corporate shall be deemed to be guilty of that offence unless he proves that the offence was committed without his knowledge, or that he exercised all due diligence to avoid the commission of such offence.
The Gazette of the Democratic Socialist Republic of Sri Lanka
Registered Stock and Securities Ordinance (Chapter 420)
Regulations made by the President of the Democratic Socialist Republic of Sri Lanka under Section 55 of the Registered Stock and Securities Ordinance (Chapter 420) read with Paragraph (2) of Article 44 of the Constitution.
Mahinda Rajapaksa
President and Minister in charge of the subject of Finance and Planning.
Colombo,
24 June 2009.
Regulations
These Regulations may be cited as the “Registered Stock and Securities (Primary Dealers) Regulations No. 01 of 2009”.
Appointment of Primary Dealers
(a) The Central Bank may, from time to time, determine the criteria for the appointment of Primary Dealers for the purposes of this Ordinance.
(b) A Primary Dealer appointed by the Monetary Board—
may enter into transactions in Treasury bonds directly as a counterparty with the Central Bank in the primary and the secondary market and may transact in Treasury bonds for its own account and for the account of customers in accordance with the Ordinance, any other written law, directions, guidelines, operating instructions and contracts applicable, as the case may be;
(ii) shall be bound by and comply with these regulations and any directions and guidelines issued by the Central Bank in respect of such Primary Dealers.
Monetary Law Act
Part III – The Governor and Deputy Governors
General functions and duties of Governor
19. (1) The Governor shall be the Chief Executive Officer of the Central Bank and shall accordingly be charged with the following powers, duties, and functions:
the execution of policies and measures approved by the Monetary Board and, subject to any such policies and measures as may be applicable, the direction, supervision, and control of the operation of the Central Bank and its internal management and administration;
the preparation or the agenda for meetings or the Monetary Board and the submissions for the consideration of the board of policies and measures considered by him to be necessary for the purpose of carrying out the principles and provisions of this Act; and
the exercise or performance of such other powers or duties as may be conferred of imposed upon him by the Monetary Board.
(2) Every instrument of the following description, that is to say, every contract, promissory note, security, report, balance sheet, statement, or other document and every rule, regulation, order, direction, notice, or requirement which bears the signature of the Governor or such other officer as may be authorised in that behalf by the Monetary Board, shall be deemed for all purposes to be an instrument executed, made, or issued by the Central Bank or by the Monetary Board, as the case may be.
Governor to be principal representative of Central Bank and Monetary Board
20. The Governor of the Central Bank shall be the principal representative of the Bank and of the Monetary Board and shall in that capacity, but in accordance with policies or rules approved or made by the board, have authority –
to represent the Central Bank and the board in all relations with other persons, including the Government and any body of persons, corporate or unincorporate, whether public or private, domestic, foreign, or international; and
to represent the Central Bank and the board in any legal proceedings either personally or through an attorney-at-law.
Delegation of powers of Governor
21. Subject to and in accordance with such rules, if any, as may be made by the Monetary Board in that behalf, the Governor may delegate to any other officer of the Bank his authority to represent the Bank for any purpose mentioned in Section 20, so however that the Governor shall remain and continue to be responsible to the board for and in respect of any act or thing done or omitted to be done by any such delegate.
Appointment of Deputy Governor
22. The Monetary Board shall, with the concurrence of the Minister in charge of the subject of Finance appoint one or more Deputy Governors who shall perform such duties and exercise such powers as may be assigned to them by the board.
Part VIII – Restrictions Relating to Central Bank Officers and Servants Duty to Maintain Secrecy
Duty to maintain secrecy
*45. (1) Except in the performance of his duties under this Act, every officer and servant of the Central Bank shall preserve and aid in preserving secrecy with regard to all matters relating to the affairs of any banking institution or of any client of any such institution or of any matter relating to the affairs of any department of Government, corporation, company, partnership or person that may come to his knowledge in the performance of his duties under this Act, the Control of Finance Companies Act, No. 27 of 1979, or any other law for the time being in force, and any such officer or servant who communicates any such matter to any person, other than the Monetary Board or an officer of the Central Bank authorised in that behalf by the Governor, or suffers or permits any unauthorised person to have access to any books, papers or other records relating to any banking institution, department of Government, corporation, company, partnership or person, shall be guilty of an offence.
Chapter VI – the Central Bank as Fiscal Agent, Banker and Financial Adviser of the Government
Issue of Government securities
112. The issue of securities of the Government or of any of the agencies or institutions referred to in Subsection (1) of Section 106 shall be made through the Central Bank, which shall act as agent, and for the account, of the Government or of such agency or institution:
Provided, however, that except in the case of Treasury bills, for which the Central Bank may make direct tenders, the bank shall not subscribe to any issue of such securities or agree to purchase the unsubscribed portion of any such issue.
Facilities for maintenance of accounts at the Central Bank and a depository for scripless
112A. The Central Bank shall provide facilities –
for non-commercial bank primary dealers to maintain accounts at the Central Bank for the purpose of settling securities transactions;
for direct participants including any direct participant which are not commercial banks, to maintain accounts at the Central Bank for the purpose of holding scripless securities, clearing and settling transactions in scripless securities among direct participants; and
for the maintenance of a depository for recording of title to scripless securities of the Central Bank, of direct participants and, in the case of dealer direct participants, of their customers. The Central Bank may make such rules and regulations as it may consider necessary in relation to the depository.
For the purpose of this Section–
“securities” mean–
Treasury bills issued in accordance with the provisions of the Local Treasury Bills Ordinance whether issued in scripless form or otherwise;
(ii) registered stock or securities issued in accordance with the provisions of the Registered Stock and Securities Ordinance whether issued in scripless form or otherwise; any securities of the Central Bank whether issued in scripless form or otherwise.
Any body corporate to provide facilities under Sections 98(1) and 112A – Management of the Public Debt
112B. (1) Any or all of the functions referred to in Subsection(1) of Section 98 and Section 112A may, notwithstanding the provisions of such Section, be carried out by a body corporate authorised for the purpose by the Monetary Board subject to such terms and conditions as may be imposed by the Monetary Board.
(2) A body corporate referred to in Subsection (1) may hold an account with the Central Bank for the purpose of carrying out such functions.
Management of the public debt
113. The Central Bank shall, as agent of the Government, be responsible for the management of the public debt.
Advice on Government credit operations
114. No new loan shall be raised and no new issue of stock or debentures shall be made by the Government or by any agency or institution referred to in Subsection (1) of Section 106, whether in pursuance of authority conferred by any written law or otherwise, unless the advice of the Monetary Board has first been obtained upon the monetary implication of the proposed loan or issue.
Employees’ Provident Fund Act
Powers and duties of the Monetary Board in relation to the Fund
5. (1) The Monetary Board—
may appoint such officers and servants as may be required by the Board for exercising its powers, performing its duties and discharging its functions under this Act, fix the salaries and wages of such officers and servants and determine their conditions of service;
shall receive all sums paid under this Act as contributions, surcharges and fees, and the income from the investment of moneys of the Fund and shall credit such sums and income to the Fund;
shall have custody of the moneys of the Fund;
may invest such of the moneys of the Fund as are not immediately required for the purposes of this Act in such securities as the Board may consider fit and may sell such securities;
shall maintain a general account in respect of the Fund, and a separate account (in this Act referred to as an individual account) in respect of each member of the Fund;
(2) Every officer or servant appointed under Paragraph (a) of Subsection (1) shall be deemed to be employed for the performance of duties under the Monetary Law Act, for the purpose of the application of the provisions of the said Act relating to officers and servants.
All aforesaid Statutory Provisions are also to be interpreted in the context of the undernoted jurisprudence
Doctrine of Joint Criminal Enterprise in the Jurisprudence as a mode of Personal Criminal Liability – allows the prosecution of members of a group for the actions of the group. This doctrine considers each member of an organised group individually responsible for crimes committed by the group within the common plan or purpose. International Criminal Tribunal for the former Yugoslavia and the Prosecution of Senior Political and Military Leaders: The Krajisnik Case.1
Due to difficulties of determining the criminal liability of each of the offenders who take part in a collective criminality context, the JCE doctrine was conceived as a means to extend criminal liability to all the members of a joint criminal plan. The three categories of JCE share the same objective elements:
a plurality of persons;
the existence of a common plan, design or purpose; and
the participation of the accused in the JCE by any form of assistance in, or contribution to, the execution of the common purpose.
Public Law Principle of Fraud on a Power, especially as there is clear evidence of the intention of the executive and State officials to abuse and exceed the power vested in them by Parliament, leading to consequential losses to SriLankan Airlines and the State as its major shareholder – General Treasury – and also to other third parties via contracts which in itself can be deemed thus to be ultra vires. This abuse extends to be a Fraud On a Power.2
In Lord Parker's formulation of the principle of the equitable doctrine of “Fraud on a Power”:
"The first is to grant discretionary powers to some person to make binding decisions in the future with legal effects. The grant of such powers to one party to a contract may give rise to especially acute issues regarding legal control, to take account of conflicting legitimate interests under the contract.
“The second technique is to impose some supervening and flexible obligation regarding future conduct, such as a duty to act in good faith or reasonably, to govern the extent to which opportunistic advantage can be taken of express rights when circumstances change in unexpected ways. The parties may in this way seek to secure some protection against abuse of rights. Fiduciary duties also work in this way.
“Both techniques have generated considerable recent interest in the field of contract law. Contract lawyers have become very interested regarding discretions created by contracts and how, if at all, they are to be subject to legal control. There has been something of a trend of reaching out for public law concepts and the public law notions of rationality and capriciousness as possible models for judicial control in this area.”
Footnotes:
1https://www.mpil.de/files/pdf3/mpunyb_02_bigi_14.pdf
2“Fraud on a Power: the interface between contract and equity” Lecture for the Chancery Bar Association Great Hall, Lincoln's Inn, London. Lord Sales, Justice of the Supreme Court – 12 April 2019 – https://www.supremecourt.uk/docs/speech-190402.pdf
