LMD ARCHIVES (APRIL 2015)
Fight it! Crush it! Stop it!
Her career spans a full 37 years; she is the first female State Counsel and High Court Judge. She has served in the Court of Appeal and as President of the Court of Appeal. She’s also served as a Supreme Court Judge. It comes as no surprise, therefore, that Justice Shiranee Tilakawardane has much to say about corruption, good governance, social equity and women’s rights – amongst other burning issues – in this month’s Cover Story, in a tête-à-tête with Zulfath Saheed.
Q: In your opinion, what is the role of the public in curbing corruption?
A: Corruption, in varying degrees, exists in most global communities. Nevertheless, what is disconcerting in Sri Lanka is how extreme it has become in the past decade or so, not only in the extent to which it has infected all corners of the public and private sector, but in how brazen participants to such corruption have become.
The extent and overtness of corruption in Sri Lanka has not only affected and distorted the national economy generally, but has had the particularly acute (and tragic) effect of pushing the already poor further into poverty.
Corruption has become the unseen barrier that disallows economic benefits of the nation to reach those who are on the fringes of development. The fiscal accountability of the public sector has been eroded by corruption, and substantial sums of money and resources that should have filled the public coffers in the course of furthering post-war development has, instead, gone into the pockets of corrupt state officials.
Those tasked with governance have so far failed to craft effective checks and balances to thwart corruption and waste by state officials. They have not, in any perceivable manner, directed earned resources to areas where they have been most needed – for instance, towards transitional governance or justice, or to war-torn areas in need of planned, sustained and expansive development. Since independence, there have been many buzzwords used by successive governments, to telegraph their commitment to propriety upon their ascension to power. We have heard of the ‘responsibility,’ ‘transparency’ and ‘accountability’ of those in power, and now we hear of ‘good governance.’
Whilst all these commitments are important, the core duty of government, as set out in our Constitution, iterates that the power of governance – which is carried out for the sovereign people of our nation – must necessarily adhere to the doctrine of public trust, a belief that people in power as well as the people present in the three organs of the state, are not ‘owners’ of the power to govern, but hold it in trust for the well-being of the citizenry.
Therefore, the resources of a nation are preserved for public use, and any government is expected to be duty bound to maintain them for that purpose.
As the true ‘owner’ of the governing power of Sri Lanka, the public’s principle duty is to be judicious in deciding whom to trust with this power. And since certain interests are so intrinsically important to every citizen, the public must be especially careful in vetting any particular individual, or group of individuals, who actively seek to acquire the power to control these interests, rights or resources.
We must collectively, as a nation and as individuals, view with scepticism any governmental conduct that is calculated to relocate that resource, restrict its use or subject the public use of a resource to the self-interest of private parties. The public’s civic duty does not end with the submission of their vote; the public must continue to vigilantly monitor the actions of the officials they elect.
This necessarily means that those who do make decisions which affect public resources must be made to do so in consideration of the public interest, and in a publicly visible manner.
Q: Could you highlight some of the decisions you’ve had to make, regarding the protection of the sovereignty of the people?
A: I have delivered many judgements that have pushed barriers with regard to both the doctrine of public trust and limiting the abuse of power by public authorities, especially those who wield executive powers. My judgements often referred to, and even set parameters for, the limitations of even presidential powers – which, of course, made me rather unpopular with consecutive presidents!
My view throughout has been consistent: the powers of those in government – even those of the Executive President – are not limitless, and what separates us from a dictatorial autocracy are the limitations that exist (and must be enforced) in the roles of governance of our democratic country.
In the case of SCFR 209 of 2007, which was decided on 13 October 2009, I chose to directly address and circumscribe the powers of the Executive Presidency, stating that even the President did not have unfettered powers, regardless of whoever held that post. Referring to the framework of the Constitution, I noted that “all facets of this country, its land, economic opportunities or the assets, are to be handled and administered under the stringent limitations of the trusteeship posed by the Public Trust Doctrine and must be used in a manner for economic growth and always for the benefit of the entirety of the citizenry… not for the benefit of granting gracious favours to a privileged few, their family and/or their friends… In other words, the President does not have the power to shield, protect or coerce the action of state officials or agencies when such action is against the tenets of the Constitution or the public trust doctrine, and any attempts by the President to do so should NOT be allowed for doing so will (i) result in their (public officers) own accountability under the Public Trust doctrine and (ii) render them sycophants unfit to uphold the dignity of public office.”
I further noted that “whilst they can use their private powers and their private property in an unfettered manner when granting any privileges or favours, and even in an overwhelming act of great generosity, give all their private property away; their public power must only be used strictly for the larger benefit of the people, the long-term sustainable development of the country and in accordance with the rule of law.”
And in another judgement (SC FR No. 209/07), I delivered a decision dissenting with eight of my brother and sister judges, with regard to the reappointment of a public officer. This officer had been previously found, by the Supreme Court, to be unfit to hold public office and ordered to forego any future opportunities to hold public office in response to the extensive, long-standing abuses of power and corrupt behaviour he committed and demonstrated, in his capacity as a public officer.
This same officer, however, made an application to be reinstated to the Treasury, contrary to the undertaking he had earlier given to Court that he would not hold such office, merely because the then president, for whatever reason, saw fit to have him return to the post.
In delivering the sole dissent, I emphatically disagreed with my colleagues on the Bench and set out, unequivocally, the limitations of the power of a President, even under the Executive Presidency.
In the judgement, I stated: “Undoubtedly, the appointing authority is the President, as Article 52 mandates. But when any incumbent President exercises his power, he or she is also under the same constitutional mandate to act in accordance with the doctrine of public trust that is reposed through the sovereignty of the people (Article 4) and under the law. No single Article of the Constitution can be given greater prominence than or read in isolation from another. It must be read and interpreted in a manner that accords with the pith and substance, and indeed, the spirit of the entire Constitution. It is, after all, the executive power of the people that is exercised by any incumbent President (Article 4B of the Constitution). Therefore, unfettered discretion (of even the President) cannot exist where the rule of law reigns.”
In addition, I noted that the President must always be guided by the underlying duty to preserve and protect public property, and to combat its waste and misuse, which are integral Fundamental Duties embodied in Article 28 of the Constitution, and inseparable from the exercise of rights and freedoms.
I noted that “in our Democratic Socialist Republic that is governed by a Constitution which guarantees democracy to its people, even an Executive President does not have untrammelled power and all acts of governance, especially those that involve public finance, must be done in a manner that accords with the spirit of the Constitution which mandates good and responsible governance.”
In this judgement, I also emphasised the fundamental importance of the Rule of Law, which is the golden thread that runs through the entire fabric of the Constitution and the role of the Judiciary, in “keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective.”
Therefore, I held that where the Court had found a public officer to be corrupt, his re-appointment to public office would be a travesty of justice. Prior rulings of the Court cannot be dismissed merely for issues of political expedience or convenience, and this officer should not have been reappointed.
Q: What measures must be taken to urgently reinstate law and order to Sri Lankan society?
A: The rule of law is the backbone of good governance. The nurturing of these twin institutions ultimately leads to a stable and healthy nation, whilst the stunting of one leads to halting the growth of the other.
Indeed, the promptings of even a kind and compassionate heart or sympathetic urgings must be controlled when dealing with the resources of the state, for it ultimately affects the ordinary people when erroneous appointments of officers are made to public office, especially as the resources belong to the people and must be in the custodianship of honest, disciplined, hardworking, knowledgeable and effective public officers.
Q: How do you think the rule of law can be observed with regard to the development of the economy?
A: Investments in Sri Lanka must be made on the basis that they are necessary for the economic growth of the country.
Sustainable economic development must be planned with foresight, and strong commitments made to both intra and inter-generational sustainability and equity. It must create equal opportunities to those who, due to a lack of empowerment, do not have such opportunities.
For it to be a sustainable development, we must look carefully into the impact it has on the environment. Therefore, long-term environmental impact assessments must be the foundation of any large-scale development in our country. Development for short-term financial gains would never be sustainable or advisable, if they were to damage the environment.
Hence, the licensing of mineral extraction and sand mining, for example, must be carefully monitored, and the sustainability of the environment is a responsibility that cannot be brusquely dismissed. Therefore, development must be viewed in that broader spectrum, to effectively deliver long-term sustainability of development and growth.
Economic development must be targeted to provide affirmative action to those who are discriminated due to gender, sexual orientation, race, caste, physical or mental challenges, etc. It must be inclusive and representational in its delivery, so that all feel equally respected and can live with dignity, in an environment that fosters peace and justice.
There is another important aspect of economic growth of our nation which I considered in SC (SD) 15/2012, a case which dealt with the Appropriation Bill and whether any part of it was unconstitutional. I found that the Bill vested powers in public officers who were not fully controlled, as envisaged by Article 148 of the Constitution.
The powers to obtain long-term loans, for instance, were vested in public officers outside and beyond parliamentary control, and could potentially be used or abused irresponsibly – and in extreme situations, used for personal gain through corrupt practices, in total negation of the safeguards guaranteed by the Constitution.
In this judgement, I stated that the Constitution “mandates that all ‘public finance,’ including the ‘spring’ or source of finance… or the allocation of public finance, passes through the ‘eye’ of Parliament, which is expected and invested with powers to act in good faith and in accord with the public trust reposed in Parliament by monitoring through its directions, and maintaining checks and balances… to assure the people that there is the highest level of fiscal accountability on the Executive. In practice, fiscal accountability can only be assured by a process where parliamentary control is exercised in full, in a transparent manner, where matters are placed in the public domain, enhancing the credibility of the process through patent disclosures and public debate on its implications.”
I found, especially in the raising of long-term loans – whether they be in or outside of Sri Lanka – that there appeared to be an abdication of all controls or checks by Parliament, as the Bill did not require the prior review of the terms and conditions on which the loans were obtained, including the rates of interest to be paid.
This is clearly what has led to the mismanagement of public funds, including deals like ‘petrol hedging’ which, due to the misuse of public offices, left the people of this nation with the burden of dealing with the fallout.
Several recommendations were suggested by Court, including the need to place adequate information prior to obtaining the loan, which would afford a comprehensive opportunity for Parliament to scrutinise and exercise full control over public finance, to ensure a measure of transparency and strong fiscal accountability. Indeed, the Court found that there was no justification for even the transfer of funds from capital expenditure to recurrent expenditure, which could pave the way for deliberate manipulation of finances and the provision of unfettered powers to the Finance Minister to make a unilateral decision over public finance outside Parliamentary control. This was never amended and, therefore, remains in contravention of the very spirit of the Constitution, in my opinion.
The economy of a nation is also affected by corruption and abuse of power, which results in a break down in good governance. Good governance is concerned with the process of making and implementing government decisions: it is not about making correct decisions, but facilitating the best possible process for making these decisions.
Good governance is multifaceted, in that it places importance on transparency and accountability, in concomitance with a duty of the government to be under obligation to explain, report and be answerable for the consequences of its acts, the responsibility to serve the needs of an entire community while balancing competing interests in a timely, appropriate and responsive manner. It must be participatory, effective and efficient – and, therefore, be equitable and inclusive of all groups, particularly the more vulnerable groups. There are also legal frameworks that prohibit money laundering in Sri Lanka, and assist in tracking and recovering corrupt funds. This is an important component of facilitating economic development, because the execution of these legal frameworks will deter future instances of bribery and corruption which can thereby facilitate the adherence of public officials to the rule of law.
One such framework is the Prevention of Money Laundering Act No. 5 of 2006 (PMLA), which recognises money laundering, as well as aiding and abetting the act as criminal and extraditable offences.
The offence has a broad definition and includes receiving, possessing, concealing, investing, disposing of or engaging in any other manner in any transaction relating to property delivered or realised directly or indirectly from any unlawful activity.
Unlawful activity enjoys an extremely broad definition, and includes bribery. Therefore, this Act is important in the tracking and recovery of assets acquired through bribes, etc. It creates a presumption which places the onus on the owner of unexplained wealth to explain the origin and manner in which such assets were purchased or obtained.
It further permits the issuance of a freezing order on assets by recognised public authorities, which clearly provides for the tracking, freezing and confiscation of tainted assets. It is an efficient and speedy mode to tackle property and assets acquired through bribery.
Further reference must be made to the Financial Transactions Reporting Act No. 6 of 2006 (FTRA), which was enacted to support the investigation and prosecution of offences under the PMLA.
A new regulatory authority, the Financial Intelligence Unit, was set up to collect, analyse and disseminate information pertaining to possible instances of money laundering which are required for enforcement purposes, to monitor suspicious financial transactions and conduct investigations into them.
This also provides for mutual assistance between local and international organisations, as it requires financial institutions to identify their customers and maintain records of all business relationships and other transactions. They are also required to conduct ongoing due diligence on customers, and report cash and electronic fund transfers above a specified limit.
What concerns me is the lack of utilisation of the powers under these Acts, to pursue and track the tainted money obtained through corrupt activities. When such finances are acquired, it is placed in a bank and then, through a process called layering, it returns to the country, where it is utilised for the purposes of purchasing luxury assets, making financial and commercial investments and so on, and then integrated into the financial system of a country.
This is also why I have noted, in a judgement, that the BOI is under special obligation to scrutinise the quality and character of investors, to avoid facilitating money laundering, as funds obtained through illegal means can be invested in Sri Lanka.
A: A greater awareness of the duties imposed under the Constitution, and referred to above.
As much as our freedoms and rights guaranteed under the Constitution should be protected, our duties must be nurtured and taught.
A sense of self-discipline and a change in selfish attitudes must be inculcated through education. Whether such education is delivered through formal or informal means is not important. What is important is the dissemination of the knowledge that all human beings are of equal value and thus, are to be respected and treated with equality in mind, and the inculcation of the notion that one’s right ends where another’s right begins.
Apart from education, there are also pragmatic means of inculcating a sense of civic integrity, and a financial component to effecting discipline shouldn’t be overlooked. For example, in the United States, whistle-blower programmes have recently been put into place, to empower citizens to come forward when they witness or are aware of corruption.
Arguably the most successful of these – the whistle-blower programme conducted by the Securities and Exchange Commission of the US – actually rewards people who provide information that helps the Commission stop a fraud, with a sum equal to between 10 and 30 percent of the amounts collected from the wrongdoers.
Though the programme is only around four years old, over US$ 50 million has been paid to whistle-blowers. These kinds of programmes, in my view, provide two main benefits: they show the citizenry, in no uncertain terms, just how committed the government is to preserving and enforcing the rule of law; and they incentivise not just the common man with little to lose by reporting fraud, but also highly-placed individuals who risk a successful career by coming forth with information but who also are, by their positions, the mostly likely to be aware of wrongdoing.
Q: With social media well and truly in the public domain, how can fact be separated from fiction when it comes to reports of unlawful acts?
A: The media needs to sacrifice sensationalism for the purpose of knowing that truth and justice has to be part of the tools they work with, and the work they produce. If journalism of any kind embellishes to the extent that it distorts the truth, it will fail in its duty to be the conduit of information to the people.
One of the perils of becoming a public figure, as a public officer, is that you become a target for people with nasty personal agendas. This has become far easier in this era of social media, with everyone being connected on equal terms.
Often, the events reported are of no truth whatsoever. What concerns me particularly is the language that objectifies women, making women particularly vulnerable to cheap and sexist comments, and delegating women to be sexual objects, rather than recognising them as persons with feelings and intrinsic dignity, and human worth.
My own belief is that media freedom must be protected and nurtured, as the media is often the voice of people who would otherwise be unheard, especially those who are impoverished, marginalised or vulnerable.
The presence of a strong Press Council is, however, a necessary check and balance that needs to be put in place; especially in this era, where sensationalism and embellishment can detract and distort even the core truth of an event that is reported.
The process may certainly justify the sale of newspapers, but is an unfortunate distortion of the truth and can even extend to catastrophically damaging and causing defamation of a person. To hear both sides of a story is another important factor that must be an important tool or skill of a journalist, if investigative journalism is to be fair and balanced.
Therefore, the duty of the media is to have a basic responsibility to help strengthen and support the democratic process, and be the voice of causes that need to be exposed for the betterment of society – but more than that, to be the spokesperson for those who are vulnerable and have legitimate concerns, and to protect and educate people.
The media must also be a watchdog and act as a gatekeeper, an instrument to disseminate necessary information and serve as a reflection of cultural interests and trends. Above all, the media must hold, as its prime directive, a desire to be truthful, balanced and just.
Q: Are you satisfied with the progress thus far in achieving equality for women in Sri Lanka?
A: There is a high level of discrimination against women and children, not only in Sri Lanka, but in the entire South Asian region. This is evident and visible in the levels of violence against both women and children. Violence against women comes from the abuse of power and control of those who inflict such violence.
Despite accounting for 50 percent of the population, women are barely represented in the higher echelons of power. They have essentially no voice in decision making, even regarding matters that involve their own security and dignity.
While equality is guaranteed under the law, it remains a theoretical notion, as there is no substantive equality due to the myths and stereotypes that surround women and patriarchal notions continually reinforced through cultural, religious and traditional beliefs.
These cultural artefacts form barriers to the full and complete autonomy of women, and bar them from reaching and achieving their full potential. It affects their freedoms and rights, and impedes their access to the protection of the law due to imbalanced attitudes of our societies.
Therefore, women’s issues are rarely highlighted, because a woman would have a different approach to addressing these issues. There is no inclusivity of women to empower decision making and accommodate this different approach, and to influence the rights that women have.
Where there is discrimination or oppression, there is inequality. And where there is inequality, there is violence and injustice. Equality of men and women is the rationale that a fair and balanced society should be based upon, and we require consensus and discourse through which decisions that affect a community are taken.
Ultimately, it is about ensuring equal dignity and respect for all citizens, including women and children. This should be a concern of every person who yearns for a civilised, peaceful and just society.
So we must cherish the rights of all people, particularly those who are vulnerable, disadvantaged or marginalised – including people who are discriminated through race, gender, age, ability/disability, sexual orientation and other characteristics.
We must discontinue viewing such people through the myths and stereotypes that exist around them, most of which are bigoted or prejudiced and do not respect their individual human worth. All people are equal. They need to be equally respected, afforded equal dignity and given protection to lead their independent lives.