Font size: 
The court based its judgment on the premise that no one, including the president, is above the law; that public office is held on the basis of public trust; that the head of state must exercise presidential power in accordance with the rule of law and in compliance with his or her conscience and sense of integrity; that the presidential oath requires the president “to faithfully perform the duties and discharge the functions of the office of the president in accordance with the Constitution and the law.”
The court made this judgment in relation to a fundamental rights application lodged by several petitioners against Kumaratunga, the Asia Pacific Golf Course Ltd, Urban Development Authority, the Board of Investment and several directors. The court ordered Kumaratunga to pay 3 million rupees (US$27,700).
The court ruled that state authorities cannot merely argue that procedures have been followed when, despite procedural compliance, a violation of the public trust has taken place. Also, state officers cannot take cover under the actions and orders of their superiors, as such a defense is not afforded to state institutions or state actors.
This judgment is the first significant judicial intervention against the perceived absolute power of the executive presidency. This perceived power has played havoc on the political system as well as the legal system of Sri Lanka. All who abused power took cover under the defense of being directly or indirectly connected with the executive president who was perceived to be above the law.
The most obvious result of this was the politicization of all public institutions. The executive president directly, or through ministers or even persons completely outside the state structure, could manipulate every small corner of the public service and interfere with all institutions. Such interference and the rule of law came into direct conflict. However, there was no way to reassert the rule of law.
The first attempt to deal with this conflict was the 17th Amendment to the Constitution, which was adopted in 2001 almost unanimously by all parties. This amendment created a Constitutional Council, to be appointed by consensus of all political parties, which in turn had the power to appoint the commissions who had the powers of appointment, transfer, disciplinary control and dismissal of public servants belonging to various public institutions.
The Rajapakse regime halted the operation of this constitutional amendment by refusing to appoint members to the Constitutional Council, thereby removing the obstruction to the president’s use of absolute power. The refusal to implement the 17th Amendment indicated that the executive was prepared to ignore the Constitution itself.
After the failure of the 17th Amendment, aggrieved citizens found they had no way to challenge the completely arbitrary system that has imposed unbearable burdens on them.
One such burden is rampant corruption that has spread to every aspect of society. While extraordinary enrichment is seen among those close to the ruling regime, the rest of the people cannot get anything done unless they are willing to pay bribes or otherwise influence the powerful. Even daring to publicize corruption carries serious risks. The media in particular are harassed and coerced into silence, while the state media unscrupulously manipulates public space to suppress information.
The Supreme Court judgment will perhaps open new avenues to challenge the climate of suppression in which those who abuse the public trust virtually claim the right to engage in such abuse. The first ever judicial action to impose a punishment on a former president is of enormous significance. If this action is extended to other holders of public office – such as officials of the Urban Development Authority and the Board of Investment – and even to private parties, it can provide a framework to deal with some of society’s most intractable problems.
The court’s order to the Bribery and Corruption Commission to investigate all matters relating to the relevant transaction is also an important direction. Unfortunately, the commission is an inadequate instrument to effectively eliminate such behavior. If the doctrine of public trust is to be realized, it is essential to develop a commission with powers and resources enough to become an effective institution.
Many Sri Lankan observers have found that Hong Kong’s Independent Commission against Corruption provides a suitable model for effective corruption control. The acceptance of the doctrine of public trust demands institutional development that is capable of practical implementation of this doctrine.
--
(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
