What is the meaning of this corrupt charade?

By Kishali Pinto Jayawardena

Last week's (uncontradicted) leader news item in this newspaper that heads of state corporations and statutory boards have been called upon by presidential advisor Basil Rajapakse and Minister Jeyaraj Fernandopulle to dispose of idle assets and contribute the gains towards building the new headquarters of the Sri Lankan Freedom Party in Battaramulla is astounding. Are these directions made with no conception of their absolute illegality? Has Sri Lanka degenerated to such a point where illegal orders of this nature can be issued with such blatant impunity and splendid disregard for the consequences? What is the meaning of this obscenely corrupt charade?

Apparently Minister Fernandopulle, (also the SLFP's treasurer), has stoutly declared his obligation to raise funds for the completion of the party headquarters. While such creditably dogged determination to work for the party's benefit may ensure his rise within party ranks, the minister may be well advised to request the party members to contribute a part of their munificent salaries and allowances towards this objective instead of attempting (illegally) to grab purportedly unutilized state assets.

Is not the minister (himself a lawyer) aware that such directions are unconscionably unconstitutional? If Minister Fernandopulle is, indeed, unaware of the same, he could be referred to several decisions of Sri Lanka's Supreme Court which have articulated this principle in no uncertain terms, such as outlawing the misuse of the state media corporations for party political propaganda. Indeed, the principle has been extended to cover, not only financial resources but also human resources, which brings us to the second point in issue.

This concerns the further direction by the SLFP's partymen that corporation heads and heads of statutory boards should get involved in the government's election activities. This again is blatantly illegal. The legal principle on which such illegality arises was well explained by the Supreme Court in Don Ranjith Deshapriya v Divisional Secretary, Dodangoda, (1999} 2 SLR, 412) which involved the rights of a Samurdhi Niyamaka who had been penalized for not engaging in electioneering for the government despite a direction issued by then Deputy Speaker and Member of Parliament for Kalutara, Anil Moonesinghe.

Moonesinghe had informed all the Samurdhi Niyamakas working in that area to canvas support and engage in "other organisational matters" connected with the election campaign of the Peoples Alliance candidates contesting the forthcoming Pradeshiya Sbaha elections later that same month. However, Deshapriya refused to comply with this directive in consequence of which he was suspended from his post. The similarity of this case with the question presently in issue in this column is extremely striking.

In a powerful judicial affirmation of applicable constitutional principles, the Court, (judgment of MDH Fernando J. with Wadugodapitiya and Gunesekera agreeing), emphasized that public funds or persons paid out of public funds, collected directly or indirectly from citizens of all shades of political opinion cannot be used to advance the interests of the government, necessarily comprising those of one political persuasion alone.

In this case, Samurdhi Niyamakas were persons performing what was described as "the major poverty alleviation programme of the government" and it was expressly required that they should perform in a manner devoid of politics. They were officers engaged in rendering services to the public, for which they were paid out of public funds. As such, they could not be commandeered to work for one political party. The judicial language used therein is interesting. Thus; "…the use of resources of the State, including human resources, for the benefit of one political party or group, constitutes unequal treatment and political discrimination because thereby an advantage is conferred on one political party or group which is denied to its rivals."

This prohibition would necessarily apply to public funds being paid directly to one political party and not to others. It would also make no difference whether such payments are made directly to individuals or indirectly, by diverting equipment, facilities of the State to the benefit of one political party.

Indeed, these are simple principles of democracy that are accepted as a matter of fact not only in Western democracies but also in countries like India. If directions similar to those issued last week at the SLFP meeting are issued, for example by the Congress Party in India (the likelihood of which, one must enviably concede, is close to nonexistent), public scorn and outrage would be immediate, causing irreversible electoral fallout. In contrast, the recent directions by senior SLFPers to use state assets to build party headquarters are all one with the culture of political corruption that encourages massive numbers of Cabinet ministers with ridiculously overlapping portfolios and funds ministers and officials to luxuriate in safaris abroad with their family members while the country's domestic and foreign policies are left to the crude linguistic mercies of unschooled novices and ordinary people wilt under the unbearable cost of living. Could the excuse of prosecuting the war (the integrity of which remains to be judged) be used to cover all these sins?

Moreover, there is an extremely dangerous precedent that will apply if these directions are adhered to by heads of corporations and statutory boards. Given the current prevalence of endemic corruption in the state sector, what is to prevent a corporation or board deliberately leaving state assets to lie idle and then, on that dubious pretext (well facilitated as this will be, by the directions issued by the government's top rankers), disposing of these assets (pocketing a percentage most probably in the process), and thereafter forwarding the remaining gains for the construction of the SLFP headquarters? This is a question that Minister Fernandopulle and Presidential advisor Basil Rajapakse should be called upon to answer by the public.

Indeed, these amazingly illegal directions by the SLFP's senior partymen should be put before Parliament for scrutiny. If the directions are acted upon by any head of a state corporation or statutory board, they should be immediately referred to the appropriate parliamentary mechanism including the parliamentary Committee on Public Enterprises (COPE) whose reports and findings as to the gargantuan corruption prevalent in the public sector are now in the public domain.

Such actions should also be taken before an appropriate court in the justifiable expectation that legal precedent will be applied regardless of political agendas and such imminent misappropriation of state resources will be halted forthwith.