Lessons for government officials from the TRC criminal misappropriation case

The former Secretary to the President Lalith Weeratunge and former TRC Director Genaral Anusha Pelpita

- Pic by Waruna Wanniarachchi

The recent decision finding the former Secretary to the President Lalith Weeratunge and Chairman of the Telecom Regulatory Commission and Director General of Telecom Anusha Pelpita guilty of criminal misappropriation of Rs. 600 million is extraordinarily significant. It is as significant as the court cases that upheld the Election Commissioner’s decisions regarding partisan TV broadcasts prior to the January 2015 Presidential Election.

This is about the misuse of public funds in the custody of the Telecommunications Regulatory Commission.  I had the honour of serving as Director General of Telecommunications, the position that Mr. Pelpita occupied until 2015. I know well the law that created the fund from which Rs. 600 million was misappropriated, the Sri Lanka Telecommunications Act No. 25 of 1991 as amended by Act No. 27 of 1996. I have heard that concerns were expressed about the lack of controls on a fund under the control of an “independent” commission when the amendments were being discussed.  We thought the safeguards were adequate, but we were proven wrong.

I taught regulation before I became Director General of Telecom in 1998. I just returned from teaching about regulation in Nay Pyi Taw, the capital of Myanmar. This particular case of flagrant abuse of regulatory independence is likely to be included in future teaching on the subject.  

Section 22F(3) of the Act states: “There shall be paid out of the Fund of the Commission all such sums of money as may be required to defray any expenditure incurred by the Commission in the exercise and performance of its powers and duties.” 

I could bore the living daylights out of my readers by listing out the powers and duties set out in Section 5 of the Act.  Instead I will simply restate what the court held: the distribution of ‘silredi’ in the midst of an election campaign in violation of election laws does not fall within those powers and duties.  The Act is online and available for anyone to peruse.

Applicable law

The presidential candidate on whose behalf the criminal misappropriation had been done has sought to shift attention to what the misappropriated money was used for. That is disingenuous. The money in the fund can ONLY be used by the Commission for “the exercise and performance of its powers and duties” as set out in Section 5 of the Act. Use for any other purpose is a criminal act. The courts have so ruled. It is not for the former President or for me to say that spending money taken from telecom users on silredi for election campaigns is good or bad.

Prof. Nalin de Silva has written that the problem is with Roman Dutch Law. He is laughably wrong. The law that has been violated, the Sri Lanka Telecommunications Act, has nothing to do with Roman Dutch Law. It is a statute enacted in 1991 and amended in 1996 by a sovereign legislature under an autochthonous Constitution.  Both principal political parties bear responsibility for the law.

The above individuals, a lawyer-politician and a prolific commentator on public affairs, may know the correct legal position but may be actively seeking to obfuscate the issues for self-preservation or other reasons.  But it is worth asking what could be the underlying reason for them seeking to justify criminal misappropriation by making these arguments or at least thinking they have a chance of being accepted.

I have written previously that concepts of rule of law and constitutionality do not come naturally to us; that except for the period roughly demarcated by the Bracegirdle decision (1937) and the appointment of Sarath Nanda Silva as Chief Justice, our default culture has been that of Kandyan-era feudalism.

Within this mental framework, laws can be ignored at the behest of the King.  Going against the wishes of the Sovereign is what is not acceptable and is liable to result in punishment.

What government officials must understand

Even if our mindset is that of the Kandyan era, we must understand that it is the people who are now sovereign, not the temporary occupants of the positions of President, Prime Minister or Minister. Laws are the way the people’s wishes are communicated to officials. It is true that laws are made by Members of Parliament. But they do so as representatives of the people, not as appointees of the President or Prime Minister.  

So even if we want to anchor our actions in Kandyan ways, we should act within the law. In the same way that King Sri Vikrama Rajasinha (1798-1815) reprimanded a senior official such as Ahalepola Adikaram for unlawfully taking the property of Elapatha Nilame or punished junior officials for neglecting their duty, today’s government officials are liable to be punished for acting outside the instructions given to them in the form of duly enacted laws by their present sovereigns, the people.

To violate election laws by using the people’s money to perpetuate a senior official’s tenure is to serve a power other than the legitimate sovereign, the people. The people’s money cannot be used to bribe or influence the voters.  Such acts amount to treason, according to Kandyan law. 

The sad truth is that the imprisoned officials were educated, intelligent people who should have known better; who should have known how to prevaricate and say no to the pretenders seeking to displace the people’s sovereignty.  The tragedy of the Mahinda Rajapaksa decade was that too many people got sucked into the false narrative that the true sovereigns were a family and not the people.  

Today, as in Kandyan times, the feudal lords who conspired against the sovereign enjoyed considerable latitude whereas punishment was prompt for the lower officials. One can only hope that justice will be meted out to those who gave the orders, not just to those whose signatures are on the documents.