COLOMBO - Finding themselves up against corrupt politicians and indifferent
governance, Sri Lankans are increasingly turning to the Supreme Court for
relief, even for solutions to everyday issues.
A landmark judgment this month against former president Chandrika Kumaratunga
in a land acquisition case has been cheered by all quarters, reflecting the
increasing trust the public places 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 to 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 (57 hectares)
property, an identified wetland near 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 abuses 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 - said the courts were 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 Inter Press Service.
Weliamuna is also executive director of the Berlin-based Transparency
International (TI) in Sri Lanka. Last month, his house came under 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, had
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 a separate state for the Tamil minority in
the north and east of the island nation.
When the Defense 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 a 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
was that the executive (president) could not 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 privatization
of a state oil bunkering company, it also ensured that he could no longer hold
public office.
President Mahinda Rajapakse then appointed Jayasundera as an advisor and he
continued to travel abroad on official assignments, angering the chief justice,
who, two weeks ago, ordered Jayasundera to apologize 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 sent a Buddhist monk to jail for a week for
failing to appear in court when summoned.
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 privatization 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 scrutinized 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. 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, and 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 favor but always to be used to optimize 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 last Friday that the former president was
planning to collect funds from her supporters to pay a fine of 3 million rupees
(about US$30,000) imposed on her for the golf course deal.
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