Govt. put on notice over PB's case

By  Sonali Samarasinghe

The recent Supreme Court judgment impugning Treasury Secretary P.B. Jayasundera of not acting in the public interest in contracting a privatisation deal with John Keells Holdings while even gifting JKH a valuable land for free as part of the deal is continuing to cause ripples, with senior government officials now put on notice to take action on the judgment.

Chairman Bribery Commission Justice Ameer Ismail, Inspector General of Police Jayantha Wickremaratne and the Attorney General have been put on notice by lawyers acting on behalf of Petitioner Vasudeva Nanayakkara while the Bribery Chairman and IGP have been warned contempt proceedings will be initiated against them if they do not take action as per the findings of the judgment.

Undoubtedly P.B. Jayasundera as a public official has a greater level of responsibility to protect public property and act in the public interest. So much so the Supreme Court of the land held him to not only have colluded with a private entity to the detriment of the public but to also have acted arbitrarily ultra vires and in a biased manner to secure an illegal advantage to a private company for whatever reason.

It is the magnitude of the man's actions that caused the apex court to direct Jayasundera to pay Rs. 500,000 compensation to the state. It is the enormity of his conduct that prompted the court in the final sentence of the July 21 judgment, couched in mandatory language to caution all parties to the proceedings to take necessary action on the basis of the findings.

Final report of COPE

Earlier in 2007 the Committee on Public Enterprise (COPE) in its final report under the chairmanship of Wijedasa Rajapakshe had already impugned the Lanka Marie Services Privatisation deal.

In its concluding paragraph of the report on the LMSL privatisation COPE stated;

"This transaction has been executed blatantly without cabinet approval with several flaws causing loss and detriment to the government and demonstrating it to be a questionable 'fix' and is therefore ab initio - bad in law, null and void."

The court would go many steps further. It would lampoon the Treasury Secretary stating the steps taken by Jayasundera and PERC were in no way mandated by the decision of the cabinet of ministers and manifestly contrary to the process that had been authorised. The judgment specifically alluded to illegal procurements, to contrivance, to manipulation, misrepresentation to cabinet and misleading the government.

But what is even more damning is the last sentence of the judgment which states that "all parties to the proceedings will take necessary action on the basis of the findings stated above." This is a telling sentence given that of the 31 respondents some were more crucial than others as far as Punchi Banda Jayasunderawas concerned.

The Bribery Commissioner, the BOI Chairman, Director General Securities Exchange Commission, the Criminal Investigations Department, COPE Chairman, the Attorney General and most importantly Secretary to the President, Lalith Weeratunga are named as respondents. The respondents are legally bound to take necessary action based on the directions in the judgment.

Cock a snook

However, far from taking any action on this errant officer President Mahinda Rajapakse was to cock a snook at the judiciary in general and at the Supreme Court and Chief Justice Sarath Silva in particular as he proffered a pardon to Minister Arumugam Thondaman, ignored the judgment concerning Punchi Banda Jayasundera and instead decided to take the Treasury Secretary with him to the Olympic Games.

With a sly wink at Jayasundera, President Rajapakse ordered a committee to study all privatisation deals and submit a report as he tossed out PBJ's facetious letter of resignation into the nearest WPB

He then proceeded to include Jayasundera in several meetings he had with China's President and other government officials where he was to discuss several large projects.

Likely to cause embarrassment to Sri Lanka, at his bilateral discussions with China's Commerce Minister Chen Deming, it was Punchi Banda who sat in with the President as he reiterated the importance of the Chinese funded projects in Sri Lanka's development process including the Colombo Katunayake Expressway, Puttalam Coal Power - Phase II and III, and the Hambantota oil tank and bunkering project. When he met the President, Exim Bank, Li Ruogu, to review funding by China it was Punchi Banda Jayasundera who stood by his side.

But even as he was showcasing Punchi Banda in this way a copy of the Supreme Court judgment had been dispatched to several key persons in China.

International bodies

Former PERC Chairman, Nihal Amarasekera who assisted Petitioner Vasudeva Nanayakkara in the LMSL case was to forward to relevant international bodies the said judgment. Amarasekera is a member of the International Consortium on Governmental Financial Management (ICGFM), International Association of Certified Fraud Examiners, and the International Association of Anti-Corruption Authorities (IAACA).

The President of ICGFM, Beatriz C. Casals on August 7 replied to Amarasekera thanking him for bringing the judgment to the organisation's notice. The letter states that as Sri Lanka was ranked in place 20 in the Failed States Index 2008 by Foreign Policy this kind of attention to good governance will help the country improve its image in the international community.

And there lies the rub.

Ironically, while the President of the ICGFM hailed the judgment as one which may help Sri Lanka slide down the Failed State Index of which currently it holds pride of place among the top 20, the very subject of that judgment was being proudly showcased in China as Rajapakse's right hand financial expert.

Sans doubt it would help if perhaps President Rajapakse did not treat the judiciary with such contempt. Surely the actions of the government in continuing to countenance the likes of Jayasundera even validating his position and throwing egg in the face of the Supreme Court by taking him to high level meetings in China merely pushes Sri Lanka further up on the Failed States Index rather than help improve its image.

Dispatched documents

Amarasekera having dispatched these documents to the relevant authorities in his capacity as member of the ICGFM and IAACA was to also fire two emails to Gotabaya Rajapakse and Lalith Weeratunga in order to apprise them and President Rajapakse of the situation.

He stated that he had already dispatched the judgment to the authorities in China and expected his communications to be disseminated among the relevant Chinese hierarchy and circulated among their international members. He also stated a synopsis of the judgment was likely to be reported in publications circulated to the members of these international organisations.

Funnily enough the President of IAACA happens to be Jia Chunwang, the Prosecutor General of the Supreme People's Procurate of China, while IAACA's Secretary General just happens to be Dr. Ye Feng, who is also the Vice President, International Association of Prosecutors, and the International Director of Asia Crime Prevention Foundation, a Member of the Prosecuting Committee of the Supreme People's Procurate China, and the Director General of the International Judicial Cooperation Department, China.

Harsh punishment

That IAACA was inaugurated in October 2006 in Beijing by none other than President Hu Jintao is significant given that the penalty for embezzlement, bribery, corruption, illegal financial schemes, graft and profiteering in China is death.

Such harsh punishment aside Sri Lanka is a signatory to the UN Convention Against Corruption of December 2005. Already Vasudeva Nanayakkara's lawyers have sent out a Letter of Notice to the Central Bank Governor Nivard Cabraal with regard to Jayasundera's continuation on the Monetary Board in the light of the landmark judgment.

Legal experts told this newspaper that a failure on the part of these respondents to take action may in fact tantamount to contempt of court.

Be that as it may last week Petitioner Vasudeva Nanayakkara, through his lawyers Abdeen Associates, was to send out letters of notice to several key respondents.

It is significant that Attorney General C.R. De Silva was also put on written notice dated August 14. The letter of notice attached copies of letters sent to the Inspector General of Police Jayantha Wickremaratne, Deputy Inspector General of Police Sisira Mendis, Chairman Bribery Commission Justice Ameer Ismail, and Director General Securities and Exchange Commission Channa de Silva.

The letter put the Attorney General on notice of the contents of the letters to the aforesaid persons requiring him to cause warranted actions to be taken for the enforcement of the law in terms of the direction in the Supreme Court judgment.

Relevant documentation

A copy of the AG's letter was also sent to Secretary, Ministry of Justice, Suhada Gamlath.

The letter to IGP Wickremaratne and DIG Mendis attaches a copy of the judgement and states that other relevant documentation such as the petition and affidavit of the petitioner Vasudeva Nanayakkara and the affidavit of Nihal Amarasekera, the 22nd respondent in the case who assisted the petitioner as former PERC chairman have already been served to them and would be in their offices.

The letter points out the several findings of wrongdoing and illegal and unlawful conduct which are of a grave and serious nature and states that it warrants immediate action in terms of Offences Against Public Property Act No. 12 of 1982 under the following broad offences

 Mischief to Public Property

 Theft of public property

 Robbery of public property

 Misappropriation or criminal breach of trust of public property

 Cheating, forgery or falsification in relation to public property

 Attempting to commit any one of the above offences.

The letter also draws their attention to the provisions of the Penal Code dealing with the contempt of lawful authority of public servants, and false evidence, and offences against public justice.

Put  on notice

The letters go on to state; "We hereby put you on notice of the Supreme Court direction in the penultimate paragraph of the aforesaid judgment viz - 'All parties to the proceedings will take necessary action on the basis of the findings stated above.' You being one of the parties to the aforesaid proceedings, thus and thereby stood and stand bound, to have taken necessary action, under and in terms of the law, which you are bounden in duty to enforce.

"Inasmuch as there have been ample instances of cases of far less gravity, seriousness and comparatively of trivia, which your offices have acted with questionable haste, which such instance our client does not wish to state herein, our client is appalled by the fact that even in the face of the Supreme Court judgment, you have failed and neglected to date, now for a period of over three weeks, to have taken warranted action in terms of the law, to enforce the rule of the law, irrespective of the personalities concerned.

"You are hereby put on notice that should you continue to be indifferent to the findings and the said direction in the aforesaid Supreme Court judgment and fail to take any action, without any further delay as warranted in terms of the law our client will be compelled to initiate contempt proceedings in the Supreme Court on this matter."

The letters of notice to Bribery Chairman Justice Ameer Ismail and to DG, SEC are of similar tenor and contain the last three paragraphs as quoted above putting these officers on notice of an initiation of contempt proceedings should they fail to act.

Copies of these letters of notice were sent to Secretary Ministry of Defence, Gotabaya Rajapakse, Chairman SEC, Gamini Wickremesinghe and Secretary to the President, Lalith Weeratunga. 

 Copy dispatched to Auditor General

Meanwhile not making either Punchi Banda's or Percy Rajapakse's life any easier Nihal Amarasekera was to also dispatch a copy of the judgment on August 14 to Auditor General S. Swarnajothy for his information and necessary action. Amarasekera went further. He also dispatched relevant documentation to Chairman, Ceylon Chamber of Commerce, J.D. Bandaranayake and to Secretary, Ministry of Public Administration, D. Dissanayake.    

He called on Dissanayake as the promoter of the Clean Hands Organisation to appreciate that in promoting this concept the head of the public service must also be clean.

Amarasekera's July 24 email to Dissanayake states that the dicta of the judgment reveals that the head has a cancerous brain tumor which has to be first got rid of before the hands are clean.

"Your Minister having submitted the cabinet memorandum 'washed his hands off and did not endeavour to rectify the wrong," it further states.  The Minister of Public Administration is none other than UNP dissident Karu Jayasuriya.