Former Chief Justice Sarath N. Silva, PC has courted controversy both while holding high office as well as in retirement. He spends his retiremnt plying between his residence in Colombo and the meditation centre he runs at Katana in the premises of the temple built by his grandfather.
Lately he has been in the forefront of a civil society-based movement to highlight the issue of corruption within the government. This has drawn both criticism as well as praise from different quarters. In an interview with the Sunday Times, Mr. Silva spoke on what he feels is wrong in the manner in which the country is being run by the Mahinda Rajapaksa government, why former Army Commander Sarath Fonseka should be released forthwith and why he still stands by the judgment given in the “Helping Hambantota” case. Excerpts
You have become a crusader against corruption of late. What propelled you in this direction?
I am increasingly concerned about corruption because so many projects in this country are undertaken at heavy expenditure on borrowed money where terms and conditions are not known to anybody. The Norochcholai coal power plant and the Hambantota Port project are two such cases that were undertaken without a transparent process of procurement. Large scale land alienation at Galle Face Green has also taken place in the same manner.
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| Pic by Sanka Vidanagama |
That is why I thought I should devote some time on this because it will have a long term effect on the country. These are undertaken on borrowed money taken on mere commercial terms and we are borrowing from a single source, virtually – China, but the terms are not known.
Sri Lanka has a particular commitment following the ratification of the UN convention against corruption in 2004, to be transparent particularly in government procurement processes. Ironically Sri Lanka was the second country to ratify this UN convention.
It is also significant as Chandrika Kumaratunga was the President then and Ranil Wickremesinghe the Prime Minister. Then came the presidential election. In the Mahinda Chintanaya it was declared that the first law to be enacted by the Mahinda Rajapaksa government would be a law against bribery and corruption but that has not yet seen the light of day.
But corruption is not a new phenomenon. Previous regimes too have been accused of such misdeeds, is that not so?
We have always had corruption, like many other countries, but through the years steps were taken to curb it. It was the British who first introduced the provision in the penal code to deal with corruption while subsequent governments too have enacted anti bribery and corruption laws. Between 1970-77 I was personally involved in a huge drive against bribery and corruption.
Since 1977 a minus factor in the J.R.Jayewardene regime was that along with the open economy came the open door for corruption.
The door that opened then has not closed since then. And today we are seeing the worst of this as there is little balance of power in the country. Virtually everything is controlled by the President and his family so the opportunities for corruption are far greater.
A huge amount from the public budget is totally at the disposal of the Finance Secretary. He dispenses money from the account as and when he pleases. Most of the extra expenditure for the President and Ministers come from this. A six month report is submitted to the Legislature but Parliamentary control of public finance is in a dismal state as the opposition is badly outnumbered. Therefore what is needed is a public drive against corruption.
There seems to be a placid acceptance of corruption in Sri Lanka .Why do you think this is so?
This is a strange phenomenon. After the recent petrol fiasco it was revealed that the tender process was entirely side tracked. Everyone from a motorcycle owner to those using SUVs (Sports Utility Vehicles) was affected but people took it lying down. There is a wrong notion of Buddhism in this country, that it is our karma or fate to get bad rulers. This is not so. Bad leaders who are corrupt only survive if there is total apathy. I think we should actively campaign for the implementation of the UN Convention on corruption.
At what level is corruption the worst?
It is there at all levels. At the level of the Grama Niladhari or the Police Constable it has been rampant all along but they can be brought to book with prompt action. But the more insidious form of corruption occurs at higher levels. This is not easily visible. The procurement process can be fixed from the very beginning. I know this personally that the specifications in the tender are laid down to suit selected buyers.
Today, this has crept right up and no one sees it till the repercussions are visible like in the petroleum fiasco. Rs 400 million has been spent on the Norochcholai power plant. I can say with authority that the Rs. 400 million far exceeds the cost of the plant. We have got a plant which operates on technology which is 20 years old. It is a hugely wasteful expenditure. Future generations will have to pay for more loans to service the loans that are being taken now. This is how the debt crisis built up in Europe .We are treading the same path. Building up of debt is a huge problem but the people are quite complacent.
Some argue that you cannot have development without a little corruption. Your comments?
Corruption is something that should have zero tolerance. We can’t have this acceptable level of corruption. It’s like the camel that enters the tent. The camel will enter through a small opening and the tent soon acquires the shape of the camel. Most investors don’t have confidence in our system because they are hidden costs. Corruption is the hidden cost. What is driving honest investors away from this country is the hidden cost you have to pay for every approval.
Political parties even in the opposition have shown little interest in combating corruption. Why do you think this is so?
The main opposition party is riddled with too many internal problems that they have no time. The JVP to their credit are basically honest. In the short period they were in government no one alleged they were corrupt. There are allegations about the way they run their trade unions but that’s a different story. Their record in government is fairly good but they are an insignificant voice.
The main opposition and religious leaders must come in and join this campaign. There must be concern shown by the religious leaders and they must head a common body which should agitate at least to implement preventive mechanisms under the UN convention. The system of checks and balances which exists in the country is crumbling.
Money is spent, taxes are imposed, and taxes are reduced at whim and fancy. We see import tax on vehicles suddenly reduced and then increased. In between a whole lot of vehicles are imported and I am sure a lot of people benefit. This is because there is no control.
Your criticism of development projects can be perceived as a personal attack against the Rajapaksa’s?
If they are doing something good for the country, I will support it. I supported the war effort to the hilt but even then I was against the violation of human rights. When Tamil persons were overnight sent out of Colombo to Vavuniya, we made an order and got them back immediately. That annoyed the Rajapaksa regime no end as that was an order by the Defence Secretary. There was no personal problem with the President even at that time.
He sent me a letter commending me when I retired. I have no political ambition at all but I openly supported Sarath Fonseka to be president because of my consistent position that the country needed constitutional reforms.
I firmly believe the presidential system of government is not suitable for this country. I also espouse reforming the electoral system and I want a solution to the ethnic problem with a firm commitment to devolution of power. Media freedom and human rights are paramount. Sarath Fonseka personally agreed with me on these issues and in particular to take action to free the country of corruption.
Do you have anything personal against the President and his family?
My decision to support Sarath Fonseka was not due to any personal animosity against Mahinda Rajapaksa or his family. But now it has come to a point that corruption is affecting the country seriously. There is no division of power only the consolidation of power virtually in one family. If this is to be so then the family has to be above board and very magnanimous.
You have to be like Caeser’s wife. When there is concentration of power there is also a huge responsibility but in this case the responsibility is getting diluted. There are many questionable transactions. You put your finger in any place, there is something wrong there. The country is being run on personal whims and fancies.
What should be the priorities of the government in this post war scenario?
First and foremost we must have a democratic and transparent system. The biggest casualty as a result of the war was democracy and liberty both on the side of the LTTE and the government. That is something that should have been restored by now. The freedom from bombs is not sufficient. People must be free in their minds too. We should ensure that the conflict does not erupt again so we must devolve power and give as much power as possible to the provinces.
You headed the Supreme Court Bench that heard the “Helping Hambantota” case where there were allegations of misappropriation of public funds directed at the President? Do you regret the judgment given in this case?
The Helping Hambantota case came soon after Mahinda Rajapaksa was declared the candidate for the 2005 presidential election. An investigation had been started on a compaint made by UNP MP Kabeer Hasheem that Mr.Rajapaksa had defrauded Rs. 70 million of tsunami relief funds.
Mr. Hasheem had no personal knowledge about this but the basis of his complaint was a newspaper report. The Police had started investigations in the most suspicious circumstances and within a few hours their report was forwarded to the Attorney General who said there was a prima facie case. At this point Mr.Rajapaksa invoked the jurisdiction of the court alleging he was being politically framed.
He feared that he would be arrested and remanded and thus deprived the opportunity to contest the presidential election. So in that situation we directed that this investigation could not precede until the Supreme Court further heard this matter to prevent him from being arrested and remanded at the time of the presidential election.
Had that happened he would have been immediately removed from his candidature. It was a case of the criminal procedure code being used to frame a political opponent. Mahinda Rajapaksa showed the court that the money that was received was deposited in an account and his secretary Lalith Weeratunga also filed an affidavit and said the money was in this account. We had no intuition to say that Mahinda Rajapaksa was a hugely corrupt person and certainly there were no allegations of corruption against him at that time.
He had deposited the money and informed the Cabinet. This was a political vendetta between Mahinda Rajapaksa and from what I see the then President Chandrika Kumaratunga. I would still hold that judgment if I had to give it all over again. The Rs. 70 million was accounted to the last cent. It was transferred to the Treasury account later on.
There was no question of embezzlement of that money. The President has had the benefit of the due process of the law on several occasions including when he was arrested and remanded for murder and allegations of corruption. I have said this before. He should at least give that same benefit he got to others. He should not have been so vindictive of Sarath Fonseka.
Should he pardon Sarath Fonseka?
There’s no question of a pardon. Fonseka has not committed any offence. If you apply the same standard, in the Helping Hambantota case, at least there was a complaint but there was no complainant against Fonseka that he had committed any offence under the penal code, No police commenced an investigation either whereas in the Mahinda Rajapaksa case the CID had begun an investigation.
Fonseka was just bundled out of the office and then afterwards they looked for things and fixed these changes against him. The President framed the charge sheets, he affirmed the conviction and sentence too. Fonseka should be released and the court should hold that this conviction was wrong.
Isn’t it one of your judgments that allowed MPs to cross over which in turn has contributed to corruption?
Under the British parliamentary system an MP has the right to cross the floor of the House in keeping with his conscience. We also had this until the introduction of the 1978 Constitution. J.R.Jayewardene was keen to safeguard his two thirds majority in Parliament. Under the new constitution if a person crossed over the Party he belonged to has the right to dismiss him subject to that person’s right to apply to the Supreme Court. The Supreme Court can rule if his removal from the party is just and equitable. It was Justice Amarasinghe who first ruled in such a case where he held that the party must hold an inquiry in full compliance with the principles of natural justice. It was in relation to the dismissal of Minister Dr. Sarath Amunguma and two others from the UNP .
I was the Chief Justice then but I did not hear that case. Justice Amarasinghe is senior and an independent judge and no one can say I influenced him to give that judgment. Thereafter others have been following this precedence. What has happened is there are problems in the UNP and the SLMC’s party constitutions. In this respect I followed the principle laid down by Justice Amarasinghe which has been followed by others as well. I have only ruled in two cases, one on the dismissal of Minister Keheliya Rambukwella and another MP from the Muslim Congress. By that time the law was well laid down.
Did you ever come under political pressure during your time as the Chief
Justice?
I have held judicial office under several presidents -- J.R.Jayewardene, R. Premadasa, D.B.Wijetunga, Chandrika Kumaratunga and Mahinda Rajapaksa. No one has ever interfered with me or the community of judges .We may have made mistakes in giving judgments but that is entirely our individual conscience and choice. |
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