Jun 30

   

In a recent newspaper report, Mr N.Srikantha MP, is reported to have said in Parliament that Judges had been appointed to the Supreme Court and the Court of Appeal without the approval of the Constitutional Council (CC) and that there would be a constitutional confrontation between the executive and the judiciary if someone challenged such appointments legally, implying that no one had done so to date.  The factual position is that, in 2006, members of CIMOGG did challenge, in the Court of Appeal, certain appointments to the Public Service Commission (PSC) and the National Police Commission (NPC) on the grounds that the approval of the CC had not been obtained.  Subsequently, members of CIMOGG challenged in the Supreme Court the appointments, also without CC approval, of two judges to the Court of Appeal and two to the Supreme Court. 

 

In layman’s language, the Court of Appeal held that the acts of the President, who had made the unconstitutional appointments to the PSC and NPC, were covered by the immunity that he is said to be possessed of under the Constitution and that, even if some injustice resulted from his violating the very Constitution that he had sworn to protect, it was something that the courts were not in a position to correct.  The Court added that it was the responsibility of the legislature alone to rectify any shortcomings in the law.  As for the fundamental rights application submitted to the Supreme Court, leave to proceed was summarily refused and, hence, there was nothing further that we could do.  In neither case was there a confrontation between the judiciary and the executive because of these legal challenges, as envisaged by Mr Srikantha.

 

In the same newspaper report, it was stated that Minister D.E.W.Gunasekera, who we believe was one of those who voted for the 17th Amendment in 2001, together with all his fellow parliamentarians, is reported to have said recently that the 17th Amendment is Aan ill-conceived piece of legislation brought to the House hurriedly.It defeats us why he did not ask for more time at the very outset to study the draft of the 17th Amendment in depth and propose the necessary improvements before he voted for it.  He is also said to have indicated that Awe have identified 15-20 areas where we find flaws and snags in this legislation and that a Select Committee had been appointed in 2006 to look into this matter.  Are we to understand from the position taken up by Minister Gunasekera that the legislature, the executive and the judiciary are all entitled to violate the existing laws of the land, including the Constitution, which all of them have sworn to uphold, on the grounds that there are some shortcomings in those laws?  Can there be any legal defence for those who knowingly and deliberately violate the current provisions of the supreme law of the land? 

 

That the minor parties could not agree on who should be the tenth member of the CC was the convenient excuse given for scuttling the CC altogether in 2005/2006.  The fact is that neither the Speaker nor the Prime Minister nor the Leader of the Opposition nor the President made a proactive effort, either individually or jointly, to persuade the minority parties to find a compromise candidate.  Instead, to the consternation of the government, the OPA proposed the name of a candidate who was acceptable to all the minority parties but the government did not waste any time concocting a fresh set of excuses to prevent the CC from being constituted.

Going back to the question of Aill-conceived legislation brought hurriedly to the House, we can do no better than to quote from a CIMOGG article which appeared in the press in October 2007:  ALooking back at the passing of so-called urgent bills and other less urgent ones by Parliament over the past three decades, we find it difficult to think of a single bill which was genuinely in need of rapid processing.  Virtually all past bills have dealt with matters which had been known for years and years, and obviously did not become urgent all of a sudden.  It is our position that there is not one bill passed by Parliament since independence that would not have benefited by its publication in the form of a Green Paper or White Paper, giving at least three clear months for the public, concerned institutions, specialists, academics and legal practitioners, to comment on its purpose, scope and specific provisions.  The recourse to treating bills as urgent has, in truth, been to deter the public from influencing legislation that was largely intended to serve the ends of the party or parties in power.  It has more often than not been a case of political groupings misusing the legislative power delegated in all good faith by the People to Parliament.  We might mention at this point that, although no legal rights or obligations are conferred or imposed by

Chapter VI of the Constitution (namely, the Directive Principles of State Policy and Fundamental Duties), its Article 27(4) states that >the State shall strengthen and broaden the democratic structure of government and the democratic rights of the People …  by affording all possible opportunities to the People to participate at every level in … government.  There is, therefore, at the very least a powerful moral obligation on our legislators to allow a reasonable opportunity to the People, who are the ultimate repositories of national sovereignty, to have their say on legislation which might well affect them adversely rather than stampede them into supporting, by default, an ignoble political agenda. 

 

We are also at a loss to understand why it has taken over six years for our all-knowing politicians to conclude that there are flaws in the 17th Amendment.  Had the public been given an opportunity in 2001 to study and comment upon the relevant proposals before they were presented to the House, we are confident that knowledgeable members of the public would have identified all the 26 faults which our politicians claim now to have identified.  It is anybody’s guess as to how long our lawmakers will keep going around the mulberry bush before they actually present their proposals to the House, once again without the benefit of informed public inputs, considering that the government has shown in no uncertain manner its dislike of encouraging or establishing, financing and empowering politically impartial institutions.

 

Jun 11

When the public ponders upon the inexorable breakdown of the Rule of Law and good governance that we see all around us, it generally has in mind the failings of only politicians and public servants but CIMOGG is in no doubt that every sector of society is at fault to some extent. Of these, there is one group which has a singularly responsible role in leading the way to improving the body politic; it comprises all those who have formed themselves into professional associations.

Professionals have had the benefit of a good education and specialized training. They have a high standing in society and are looked up to by the public, which unequivocally demands skilled performance and honest dealings from them. By virtue of that fact, one would expect that professionals would, on their own, conform to standards which are an example to the rest of their fellow citizens. However, it is distressing to see how reluctant most professionals are to clean up their own houses by dealing appropriately with those of their fellow members who act corruptly or unprofessionally, neglecting their fiduciary obligations. It is sad to see that the public’s expectations in this regard are far too often fulfilled only in the breach.

The Organisation of Professional Associations (OPA) consists of around 40 professional associations. The Executive Council of the OPA may also enroll any individual member of a member association as a Life Member of the OPA Professional Centre, which is responsible for the promotion of the aims and objects of the Organisation, and the conduct of its business and activities. Any member association may be suspended from membership by the OPA Executive Council upon such member association being found to have violated the principles laid down in Chapter 3 of the OPA constitution. One of these principles is that every member of a member association is required to endeavour always to foster, promote and respect the interests of the nation, his profession and his fellow members. Self-evidently, encouraging, collaborating in or covering up corruption would clearly not be in the interests of the nation or anybody else other than the perpetrators, and would constitute decidedly unprofessional conduct. Failure of the relevant professional association to inquire into and take disciplinary action against an errant member would be a serious reflection on its own integrity.

Recently, a situation has arisen where some issues pertaining to corruption allegedly engaged in by a number of senior members of the Institute of Chartered Accountants of Sri Lanka (ICASL) are being inquired into both in the Courts (under the laws of the land) and within the OPA (under the constitution of the OPA). There is considerable foundation for concluding that the Executive Council of the ICASL and its Ethics Committee have been dragging their feet in investigating the complaints made against the said senior members. Even the adverse findings made by the Parliamentary Committee on Public Enterprises (COPE), headed by the Hon. Wijedasa Rajapakse MP, have not been investigated to the point where the ICASL has thought it fit either to clear the names of the senior members concerned or to determine whether they have actually acted unprofessionally. The problem for the public, who regard Chartered Accountants as highly responsible and honourable professionals, is that it is understood that the principal reason for this lack of expedition is that some of the more important members of the ICASL’s Executive Council are, or were, among those alleged to have committed the said unprofessional acts, or are close friends and business associates of those so charged. What is most disturbing is that the key procedures stipulated in the ICASL’s own constitution have, as far as we have been able to ascertain, not been followed by its Executive Council and Ethics Committee.

In CIMOGG’s view, it is now necessary for the members of the general body of the ICASL to protect themselves from being considered to be accessories after the fact, helping to hide major cases of corruption involving public assets, where senior members of the ICASL have been named. The general body needs to act now because pressure is being applied on the OPA by the media to put its own house in order (including those of its constituent associations) before endeavouring to pass judgment on those outside the recognized professions.

Under Clauses 4.5 and 4.6 of the OPA constitution, the OPA is authorised to look into the question of whether the a constituent association should continue as a member of the OPA if it (the constituent association) does not investigate the grave charges made publicly against any of its members, as such inaction would plainly be a violation of the principles of Chapter 3 of the OPA constitution. The unvarnished truth is that there would be no need for the OPA to get involved provided that the constituent association does what its own constitution obliges it to do. On account of the fact that the powers that be at the ICASL are not seen to be acting as they are obligated to do by their own constitution, the non-office-bearing members of the ICASL need urgently to safeguard their individual professional reputations by getting this matter sorted out in a legitimate manner. For a start, all those who have been accused of unprofessional behaviour, including covering up for the alleged lawbreakers, should resign their positions in the decision-making committees of the ICASL and make way for a more independent set of office-bearers. The general body should then press the ICASL’s new Executive Council and its new Ethics Committee to go through the substantial volume of documentation already available and take an early decision on the question of whether the accused senior members are guilty or not of unprofessional conduct.

In carrying out this exercise, it is vital that the members of ICASL’s general body forget about friendships and political, business or family relationships and appoint a small, ad hoc Task Force of independent fellow members to see that the new Executive Council and the new Ethics Committee are not pressured by interested parties to delay or interfere with their investigations, conclusions and recommendations, as one fears has been happening over the past several years.