Referring the matter to the Supreme Court

If the Speaker of the Parliament claims that he has no power to investigate into the MPs transacting business with the State, contrary to the law, then whom shall we, as citizens of the country, present this grievance which affects the fate 

of the people and the survival of the country? In this backdrop, as citizens, we considered the Supreme Court is the only refuge to make our grievance – Pic by Shehan Gunasekara

Parliament is the supreme authority that enacts laws and formulates policies for the coun-try. It is also the custodian of public property of the country.

If the Parliament, the Ministers and MPs misuse public property in their custody, contrary to the law; and the Parliament prevents the law being implemented against them admit-ting it as an accepted policy; and allows them to acquire the best economic means of the State, directly or indirectly, causing a massive revenue loss to the State whereby plunging the State into a state of bankruptcy and compelling it to depend heavily on foreign loans, then, how shall this offence which is being perpetrated persistently by the Parliament be rectified? 

Change of government will not be a solution to this problem. Misuse of public property by MPs has become a permanent feature in the State rule of Sri Lanka. It can be considered a practice originated in 1978 and had been pursued by every regime that came to power for over 40 years. Therefore, the change of governments cannot be considered a remedy for the issue.

This can be considered one of the major problems affecting the survival of the country which needs immediate solution. A written complaint was made to the Speaker of the Par-liament on May 19, 2019, explaining the nature and seriousness of the issue, believing that the Speaker will take appropriate action to rectify this error. However, the response of the Speaker of the Parliament was that the authority on instituting legal action against acts of corruption or fraud purported to be committed by MPs rests on the institutions like the Commission of Bribery and Corruption and the Department of Attorney General. 

But, this is not an issue pertains to an individual or few selected persons. It is a common issue pertains to the Members of Parliament. We do not believe that the Commission of Bribery and Corruption or the Department of Attorney General have the ability to investi-gate into a common problem pertains to an institution except for dealing with issues per-tain to individuals. Moreover, the Commission of Bribery and Corruption had proved its inability to deal effectively with the complaints made against individual MPS on several oc-casions. 

Explaining this situation, a letter dated 10 May 2019 was sent to the Speaker of the Parlia-ment. Regrettably, his response (letter dated 10 May 2019) was that, as the Speaker he has not been equipped with the power by the Constitution to act against MPs doing business with the state. 

If the Speaker of the Parliament claims that he has no power to investigate into the MPs transacting business with the State, contrary to the law, then whom shall we, as citizens of the country, present this grievance which affects the fate of the people and the survival of the country?

In this backdrop, as citizens, we considered the Supreme Court is the only refuge to make our grievance. Consequently, we decided to present our grievance in the form of an Ap-peal to the Supreme Court, signed by 62 citizens belonging to a wide and varied range of professions representing a larger cross-section of Sri Lankan society. 

The full text of the appeal made to the Supreme Court is produced below. 

An appeal to the Honourable Chief Justice and the entire panel of the Honourable Judges of the Supreme Court of The Democratic Socialist Republic of Sri Lanka for the common good of the country

1. The issue contained in this appeal can be summarised as follows. A practice had been in operation in Sri Lanka for a very long time, in which the People’s repre-sentatives elected to the Executive, the Legislature, Provincial Councils and Pra-deshiya Sabahs by the public vote are engaged, illegitimately, in the purchase of public property and assets; transacting business with the state; unlawfully acquiring government permits, licenses and such implements that authorises opportunities of high business value; getting government tenders awarded to themselves wilful-ly and in contravention of State procurement procedures; and illegally obtaining government approval for state funds to finance their own pet projects – in criminal breach of trust placed on them by the public and violation of the law. These illegal practices cause to corrupt the State in its entirety; diminish the State revenue; de-stroy the entire ecological and environmental system; push the country to a state of bankruptcy so much so that it has to depend on colossal foreign loans for surviv-al; prevent genuine entrepreneurs who are unwilling to resort to illegal practices, moving forward on their own merits and strengths without entering into unfair competitions; dissuade the in-flow of foreign investments that are essential for na-tional development; increase tax burden on the people; weaken the labour market and increase unemployment; accelerate the brain drain; make the poor poorer; create business ventures being operated outside the purview of the law; weaken the rule of law; distort the governance system; distort the nature and orientation of people’s representatives; in short, to make Sri Lanka, a backward and retrogres-sive country in terms of social, economic, political, cultural and environmental crite-ria acknowledged by the international community thereby creating a fertile ambi-ence for intense and continuous violation of fundamental rights of the citizens of Sri Lanka. 

2. We are submitting this issue, which is of great public importance, to the Supreme Court as a Public Complaint instead of an Interest Litigation as we are convinced of it to be the most appropriate course of action available to us considering the signifi-cance and the seriousness of this issue. Moreover, our legal counsellors have ad-vised us that the Supreme Court has the authority and the ability to take this issue which is a matter of far-reaching national importance. We endorse the guidance and advice provided by our counsellors with complete compliance and confidence in it. Therefore we submit this matter for the prudence and jurisdiction of the Su-preme Court which we hold in high esteem and good faith.

3. Those who are elected by the people for the governance of the country shall not engage in business transactions with the State, is a basic and inviolable principle acknowledged and adopted by the entire democratic world. There are strict laws for this in almost all democratic countries. Even in Sri Lanka, a strict policy in this re-gard was in operation up to 1977. Yet, the new political system that surfaced since 1977 has hampered and hindered the implementation of such laws and other re-lated rules and regulations to date. As a result, the violations of the law in this re-gard by the people’s representatives, with callous disregard and disdain with no fear of the law, have become a large scale operative and a common phenomenon. 

4. In this backdrop, a corrupt system has been established under which the people’s representatives having access to enormous official power, transfer at will , any val-uable public asset or resource of the country that comes directly under their im-mediate custody and authority, to members of their families, parliamentarians of their political party and other cronies at absurdly nominal prices. Under this system, a large number of MPs have become businessmen transacting business with the State, contrary to the law. This illegal practice is widely prevalent in the spheres of alienation of state lands, awarding government tenders and issuance of State busi-ness licenses. 

5. Though, the engagement of people’s representatives with business transactions with the State, should be considered a serious transgression of the law, it had been in operation since 1977 and up to date with the knowledge and blessings of the Heads of the state while they too are eminent beneficiaries of this system.

 

6. The following examples can be cited to substantiate this claim. 

a) President J.R. Jayewardene exchanged a barren coconut land that he had at Madampe, for a fertile land belonged to the Land Reforms Commission. Con-current to it, many lands and buildings that belonged to the Land Reforms Commission and the Urban Development Authority were allowed to be ac-quired by the MPs of the ruling party and their cronies for a nominal price. Fol-lowing his footsteps his successors too, permitted their family members, ruling party MPs and cronies to acquire State property for a nominal price. The loss incurred to the Government Treasury owing to these transactions could be several trillions of rupees. 



b) The radio waves and communication frequencies utilised for television and ra-dio broadcasting are acknowledged to be an extremely limited resource owned by the public and having an enormous economic value. In democratic countries they are sold on auction subject to strict conditions that they will be used for the benefit of the people. They are sold for a very high price. The sale of Radio Waves and Communication Frequencies commenced during the reign of President Ranasinghe Premadasa. Since then all his successors have trans-ferred the ownership of radio waves and communication frequencies to their cronies at a nominal price. The income earned by these cronies by selling them to third parties is huge. The revenue loss to the State from this alone can be several billions of rupees. 



c) The issue of liquor shop license is an important source of income for any coun-try. But, in Sri Lanka, even the liquor shop licenses are issued at a nominal price and in a manner that deprives the State of a large portion of earnable reve-nue. During the regime of President Chandrika Kumaratunga, over one thou-sand liquor shop licenses had been issued through the MPs of the ruling party. Consequently, a considerable number of ruling party members, directly or in-directly have ended up being taverners. There are large scale owners of distill-eries and holders of re-export, mineral sand, soil, timber and passenger trans-portation licenses among the MPs. 

 7.  Even after 1977 two MPs, Albert Silva and Rajitha Senaratne were deprived of their parliamentary seats by the judiciary on the ground that they had transacted busi-ness with the State. On both occasions, even before the ink of the judgments passed by the Judiciary ran dry, they were reappointed to the Parliament by the party leaders circumventing the court order by other means. Thus, the President J.R. Jayewardene appointed Albert Silva to the Kamburupitiya seat on Chit System. Prime Minister Ranil Wickremesingha appointed Rajitha Senaratne to the Parlia-ment on the National List. These two examples illustrate that the political leaders of the country are not prepared to respect the judgments of the judiciary in this regard and that their prime desire is to protect and preserve this evil system which is contrary to the law, as it fosters appropriating public funds and assets through il-legal means

 8.  We, the signatories to this petition, subject to clause 12 (1) of the Constitution of Sri Lanka, assert that the rulers of this country including the MPs, who are the tem-porary custodians of public property have caused a massive revenue loss to the State and a rights loss to its people over a very long period of time by way of mis-appropriating the said property and assets while they were under their custody; and this situation has led to corrupt the entire State in addition to diminishing the revenue to the country and pushing the entire nation to depend on colossal for-eign loans for survival; and in consequence thereof they have knowingly and per-sistently violated the fundamental rights not only of those submitting this petition, but also of the entire citizenry of Sri Lanka.

 9.  In recognition thereof and of the seriousness and the national importance of this issue, we the undersigned, solemnly and respectfully request the Honourable Chief Justice and all the Honourable Judges of the Supreme Court, 



a) To initiate a judicial inquiry into this matter. 



b) To issue a directive to the Auditor General to conduct a rapid audit within a specific period of time and report the status of the business transacted by people’s representatives themselves or with their kith and kin or through oth-er people, with the State, and of the transfer of public assets to them in a manner causing damage to the State and contrary to the law.



c)  To issue a directive to the Commission of Bribery and Corruption to submit a report to the Judiciary on complaints received by it against MPs, the complaints being investigated, the investigations already completed but no legal action taken yet and the ones the investigations have not been concluded yet. 



d) To issue a directive to the Commission of Elections to make it mandatory for the candidates to submit an affidavit confirming that they are not engaged in business transactions with the State by themselves or with their kith and kin or through other people before accepting nomination papers for elections. 



e) To deprive the parliamentary seats of MP who had transacted business with the State and amassed wealth, contrary to the law; suspend their right to contest elections for a specific period; and direct the Attorney General to institute le-gal action against defaulters/violators to recover the loss from them, if any damage has been caused to the State owing to unlawful business transactions they have committed with the state. 



f) And to initiate any other action/s as the Judiciary deems to be fit and proper.

  02 August 2019 

The list of signatories to the appeal: 

Journalist M.K. Victor Ivan, T.M. Premawardana, former Deputy Director of Education, Ven. Diyakaduwe Somananda Thero, Tilak De Silva, Engineer, Thiranjani Sunethra Rajakaruna-nayake, Writer, Asoka Handagama, Film Director, Seetha Ranjani, Journalist, Lal Hegoda, Veteran photographer, Prof. Hemantha Senanayake, Neel Rajakaruna, Senior Lawyer, Na-waratne Gamage, Veteran Musician, Sylvester Jayakody, General Secretary(CMU), S.C. Maydunne, former Auditor General , Vimukthi Jayasundara, Film Director, Emeritus Prof. Piyadasa Athukorala, Emeritus Professor Krishan Deheragoda, Jayantha Dolawatta, Senior Lawyer, G.D. Dahanayake, former Principal, Dr. Saiful Islam , S.H.M. Faleel, Senior Lecturer, Parakrama Niriella, Drama and Film Director, Siril Enderamulla, former Principal, Rev. Fr. B.T. Sarath Iddamalgoda, Prof. Anton Meemana, Noyel Fernando, Mercantile Executive, A. Sunil Fernando, President (Fisheries Co-operative Union), Nalin Perera, Leader (Marians Music Group), Prof. S.B.S. Abyakoon, U.T. Vidanagama, Consultant Physician, Prof. Li-yanage Amrakeerthi, Prof. Mohamed Ismail Mohammed Mowjood, Dr. M.A.M. Siddique, M.I.M. Thowfeek, Adjunct Senior Lecture, Gufran Ismail, Engineer, Dr. A.D. Nimal Chan-drasiri, Lyricist Dammika Bandara, M.K. Jayatissa, President (Progressive Peasants’ Federa-tion), Dr. Rajan Hoole, Emeritus Prof. Rajaratnam Sivachandran, S. Sivagurunathan, Inter-preter, Dharmasiri Bandaranayake, Drama and Film Director, Mahinda Hattaka, Writer, Rathna Sri Wijesinghe, prominent Lyricist, P.K. Kasun Amila Pussewela, Journalist, Sujeewa Wimalanath Weerarathne, Editor(Ravaya), Journalist Indunil Usgoda-arachchi, Journalist, Vindhya Gamage, Journalist Tharindu Iranga Jayawardhane, Journalist Rasika Gun-awardhana, Ranjith Dissanayake, Publisher, Wijaya Undupitiya, Anti-Corruption Activist, Priyantha Pradeep Ranasinghe, News Editor (Ravaya), Journalist, T. Nadaraza, N.D. Walpo-la, Security Officer, P.R. Udaya Kumara, President (Language Association for Freedom), R.A. Jayasooriya, President (Bio-Fertilizer Manufactures Association), S.A. Sumith Nethranjana, Entrepreneur, M.H. Rasa Mohammed, Public Management Assistant, Udaya Manawasinghe, Lyricist and Journalist, N.A. Nimal Abeysinghe, Journalist, Tiran Kumara Bangagamaarachchi, Deputy Editor (Ravaya), Dineshika Udayangi, Journalist.