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RIGHTS-SRI LANKA: Court Steps in as Governance Falters

Feizal Samath

COLOMBO, Oct 27 2008 (IPS) - Finding themselves up against corrupt politicians and indifferent governance, Sri Lankans are increasingly turning to the country's Supreme Court for relief, even for solutions to everyday issues.

A landmark judgment earlier this month against former president Chandrika Kumaratunga in a land acquisition case has been cheered by all quarters, reflecting the increasing trust that the public is placing in the courts. The public's dependence on the judiciary now threatens a confrontation with the legislature.

The apex court said Kumaratunga, who was president from 1995-2005, had "grossly abused her power and betrayed the trust of the people" in acquiring land for public purpose and then handing it over to a private developer for a golf course. The 140-acre property, an identified wetland near the country's parliament, was turned into a golf course fringed by posh apartments and sold to the rich and influential.

While this is a high profile case and the first time a former president has been indicted for being involved in a corrupt deal, the Supreme Court has over the past few years ruled on a range of issues from simple administrative matters such as school admissions and traffic congestion to abuse of power by the executive.

Well-known human rights lawyer J.C. Weliamuna who successfully prosecuted the Kumaratunga case for the two main petitioners – two ordinary Sri Lankan citizens – says the courts are the last bastion of hope for the people.

"The executive and various arms of government have failed the people. Even the main opposition is inept, and thus the people have no choice other than to seek justice from the courts," Weliamuna told IPS.

Weliamuna is also executive director of Transparency International (TI) in Sri Lanka. Last month, his house came under a murderous grenade attack by unknown persons, but he and his family escaped unhurt.

"Kaata kiyanadana (who can we complain to)?" is a popular and desperate lament of Sri Lankans across the island when confronted with justice and fair-play issues – be it against local authorities or the central government.

Others lawyers said the Supreme Court, led by Chief Justice Sarath N. Silva, has delivered many judgments against executive actions, to the point of raising concerns about judicial interference.

When residents complained that their movements were being interfered with by barricades and security cordons in the capital, the court ordered the obstacles removed.

This raised eyebrows in a country that has for more than two decades been hit by a decades-old, violent ethnic war between the Sinhalese dominated government and Tamil rebels trying to carve out separate state for the Tamil minority in the north and east of the island nation.

When the defence ministry, last year, ordered the eviction of ethnic Tamils who had arrived in the capital fleeing the troubled northern region, the Supreme Court deemed it a violation of the basic constitutional rights of citizens.

Although security forces argued that Tamil rebels could be hiding among the refugees, the court went along with complaints from a political lobby group that the rights of hundreds of Tamils were violated when they were dragged out of lodges and forcibly transported out of Colombo.

But the court has also intervened in ordinary administrative issues where the government has been found wanting.

"When the government dilly-dallies on key administrative issues, people turn to the courts," a retired civil servant said. In one case, when admissions to national schools became a problem due to a corrupt system, the court ordered the education authorities to come up with a people-friendly system.

Last month, teachers refused to mark test papers of a key university entrance examination in protest over salary anomalies. The court then ordered the government to settle the issue and persuaded the teachers to return to the halls to mark the papers.

And when the state-run utility proposed to raise power tariffs, the court, when petitioned by the people, intervened and the proposal was shelved.

A political analyst, who declined to be named for fear of contempt proceedings, said the main message in the Kumaratunga ruling and some other court decisions is that the executive (president) cannot plunder and steal from the country under the guise of executive action. "That's a clear message to the executive, the government and powerful officials," he said.

When treasury secretary P.B. Jayasundera, the country's most powerful official, was taken to task by the court in July for a corrupt deal in the privatisation of a state oil bunkering company, it also ensured that he could no longer hold public office.

President Mahinda Rajapakse then appointed Jayasundera as advisor and he continued to travel abroad on official assignments, angering the Chief Justice who, two weeks ago, ordered Jayasundera to apologise and furnish an affidavit renouncing all official functions. That ended Jayasundera's career holding high office under Kumaratunga and Rajapakse.

Two months ago, the Supreme Court nearly sent a Buddhist monk to jail for failing to appear in court when summoned and relented only when a formal apology was tendered.

In recent times, several cases relating to the sale of public sector companies to private individuals or companies have come under the scrutiny of the court. However, the court has reserved judgement in a case filed by an ordinary citizen against the sale of the country’s biggest insurance company.

Petitions to the Supreme Court against privatisation of state assets have also triggered a possible conflict with parliament.

In the case involving former treasury secretary Jayasundera, former prime minister Ranil Wickremasinghe was also named as respondent. Wickremasinghe, in an affidavit, took the position that this amounted to breach of parliamentary privilege as the case was already being scrutinised by a parliamentary committee.

The former prime minister said if he filed an answer in the case he would be bringing parliament before the jurisdiction of the courts.

Fraud and corruption are not new in Sri Lanka where most politicians are seen to be corrupt and supported by a pliant police force that serves the government in power – rather than the people. The Berlin-based Transparency International (TI) places Sri Lanka 92nd in a list of 180 countries in its Corruption Perception Index.

At least some of that corruption has been traced to the power of the president to appoint key functionaries.

A move to check the power of the president came some years ago when parliament, backed by all political parties, sealed an amendment to give the legislature – through a constitutional council mechanism -the power to appoint judges, the police chief and other high-ranking officers.

However, the government delayed naming its nominees to this council, scuttling the mechanism in the process, adn allowing the president to retain powers of appointment.

Perhaps the worst indictment of abuse of power by the executive came during the court ruling against Kumaratunga when Supreme Court Judge Shiranee Tilakawardene stated in her judgment that "public power is not for personal gain or favour but always to be used to optimise benefit for the people’’.

‘’The [former] president [Kumaratunga] does not have the power to shield, protect or coerce the action of state officials or agencies when such action is against tenets of the Constitution or the public trust,'' she ruled.

Tilakawardene said Kumaratunga had '’failed to act with the requisite level of responsibility warranted by her position, abused her power and acted in a manner that reveals a desire to accommodate an interest or interests other than that of the people of Sri Lanka.’’

But, ‘The Island’ newspaper reported on Friday that the former president was planning to collect funds from her supporters to pay a fine of Rs three million (about 30,000 US dollars) imposed on her for the 'corrupt' golf course deal.