Chandrika in the dock

PETITION: Chandrika Bandaranaike Kumaratunga, the most powerful, most incorruptible leader this country has ever produced, was the 1st respondent in a fundamental rights application filed by three lawyers, Hiroshana Senerath, D.M. Dissanayake and Ajith Liyanage. It was supported by a maverick lawyer named Peter Jayasekera.

In the Petition, the lawyers alleged that the 1st Respondent, Chandrika Bandaranaike Kumaratunga, inter alia some transactions, she sought to do as the President, were unlawful, illegal and unreasonable, arbitrary, capricious and mala fide.

The Fundamental Rights petition, filed by the three Attorneys-at-Law, is a grave indictment on Her and demonstrates the inevitable and oft quoted dictum, "You can deceive all the people some of the time, Some people, all the time, but not all the people all the time".

It was common, during the tenure of Her, to listen to, or read and applaud the innumerable speeches she made, over the electronic and printed media, about her integrity and honesty.

The famous line that was oft quoted by her was that the Bandaranaikes were not corrupt. The mention of the name Bandaranaike brought forth nostalgic memories of two leaders.

The first, a silver-tongued orator, who brought forth an era of the common man and was more powerful in death and the other who created a world record by being elected as the world's first woman Prime Minister.

There was not even a breath of an allegation of corruption against them. We must not forget that it was Bandaranaike who instigated an inquiry which found Members of Parliament, his supporters, guilty of Bribery and eventually disenfranchised them.

It was the equivocal uncontradicted truth that the Bandaranaikes were not corrupt. This unassailable truth was oft quoted by their daughter, Chandrika Bandaranaike Kumaratunga.

The people who long cherished and had fond memories of these two Bandaranaikes, without any manner of doubt, accepted the dictum, the epithet and the slogan that Bandaranaikes were not corrupt. It was accepted by every Dick, Tom and Harry with the approval and absolute veneration by the hoi polloi.

But strange things have happened after she did everything possible to scuttle the campaign of the common left candidate, Mahinda Rajapaksa, who was also a commoner.

Unlike her own uncle, Hector Kobbekaduwa, who came from the blue blooded connections with the Ratwattes and succumbed to various conspiracies, Mahinda Rajapaksa was a damn good street fighter, who fought every one of her subservient acolytes and eventually won the battle.

For the first time we found the "(Pravenidasa)" vassals, who with unflinching devotion venerated the feudal landlords, defying their decree, and voting for the candidates who were more faithful to the Rajapaksas.

Thus, there was a revolt in the fiefdom of the Bandaranaikes, who virtually forfeited the right of inheritance and succession they claim they had, as the people gave their preference to a hoi polloi in Vijitha Herath, who was close to Mahinda Rajapaksa, beating Anura to second place.

Later, Ivan of 'Ravaya' and Sinha Ratnatunga of the 'Sunday Times' exposed certain transactions, involving Chandrika, regarding the acquisition of property and other shady deals which created a slight dent in the minds of those who refused to believe that she was involved in any deal, which would tarnish her pristine glory and lily-white image, as the most incorruptible leader in South East Asia.

But, the majority dismissed these allegations, as it appeared in a tabloid which was hostile to her from the very inception. Chandrika had made more sacrifices than any other leader in the South East Asia. She lost her father then her husband and an eye in serving the country.

First it was the President's Fund. The monies had been transferred elsewhere denuding the fund. Poor Rajapaksa had no money to give to those who applied for medical treatment.

Lastly we heard about a Mansion in UK and the buying of curtain material paying for it with a huge some of money and that too in cash. These allegations were denied by her and most independent minded people thought that this was another deliberate attempt to discredit her.

Amidst all these allegations and denials, a few days ago, Chandrika arrived in Colombo, earlier than expected, with the intention of going to Court as the 1st Respondent of the Fundamental Rights application that had been filed by the three lawyers.

But she had not gone to Court, as she had been informed, by one of her Counsels, that the case would be adjourned.

Then, there were questions posed, by those who generally oppose, for political reasons, any order made by the Chief Justice.

They were in whispers, cynical of whatever pronouncements the Court made. It was believed that His Lordship took upon himself the hearing and determining of the Fundamental Rights application.

Misinformation

As the public could be easily fed this kind of malicious misinformation, it was proved to be far from the truth. The application was supported by lawyer Peter Jayasekera before two separate benches, independent of the Chief Justice and that Judges, that comprised the panel of three, declined to hear this case for personal reasons.

It came to a point where the whole application would have ended up in a nullity if not for the intervention of the Chief Justice.

The legal fraternity has been told by many jurists, international organizations and funding agencies that every possible effort must be made to expand the scope of public interest litigation. The UNDP, the CIDA and even USAid on innumerable occasions pleaded the cause of public interest litigation.

The role of the lawyer, who is not driven by astronomical fees but values his contribution to society, should be to take seriously the interest of the public and the rights of the people, including community rights.

In India, Justice Bagawathi, who has pioneered the Public Interest Litigation, which is known as PIL, has made many orders against the executive on community rights which are cherished even today.

The Supreme Court of India, in its most celebrated case, reversed the immunities granted to State Officers acting under the Emergency.

Though this was not a matter which came within public interest litigation, it is still considered one of the main cases that was a precursor to the subsequent actions in the Supreme Court.

In India, a public spirited citizen, Piloo Mody, petitioned the Bombay High Court that three Cabinet Ministers had leased out valuable plots of land at a gross undervalue.

The whole question, which came up before the High Court, was whether Mody had any status to file this application as he was not a party to the action. He was not one of the three Ministers nor was he the person whose land had been acquired and he had no reason to be aggrieved by the said order.

This is known as locus standi and the Bombay High Court decreed that whatever good intention the Petitioner had in brining to light the great land robbery by the three Ministers with the approval of the Cabinet, which cannot be condoned by any forum, but yet Mody had no status or locus standi to intervene.

I cited this case in order to show the similarity of the Petition that has been filed by three lawyers supported by Peter Jayasekera against the 1st Respondet Chandrika to it.

The Petitioners stated, in their Petition, that their locus standi was that "The Petitioners are all citizens of Sri Lanka and are by profession Attorneys-at-Law of the Supreme Court of Sri Lanka.

They are not mere onlookers or passive spectators, but a conscious element of the polity, properly informed of the law compared to other citizens.

They are contributors to the Consolidated Fund. They have a right to protect the fund and all public funds, which are meant to be used for good governance. The State funds are raised from the Public of Sri Lanka by way of Custom duties, direct and indirect taxes and other means.

Nobody, howsoever high, could be allowed to dip into these funds and beak out, illegally and arbitrarily, by abuse and misuse of power.

Every time such is done the citizens, including the Petitioners, have to pay more to the State by way of taxes, while being burdened with the increasing cost of living.

The fundamental rights of the Petitioners, as well as of all citizens of Sri Lanka, have been infringed or are about to be infringed by the executive and administrative actions of the 1st to 35th Respondents, within the meaning of Article 126 read with Article 17 of the Constitution. Therefore, the Petitioners have the standing to make this application under Article 126 of the Constitution".

Public funds

This will be one of the few cases, filed in the Supreme Court, which expands the jurisdiction of public interest litigation.

This application also shows that in a democracy, whatever facade one is able to show the public when in power, if one has lied and deceived the public about honesty and integrity and has misappropriated public funds, then, one could be brought to justice.

But in Sri Lanka, with Presidential immunity, we had to wait till Chandrika became the former President.

The sycophants, who surround those when in power, will fly away leaving the powerless leader to act on his, or her, own.

In the Petition, one of the main grounds alleged by the Petitioners are that, "Chandrika Kumaratunga sought the approval of the Cabinet, through a Cabinet Memorandum, brought by the Minister of Urban Development, to acquire a block of land, One and a half acres in extent in lieu of her pension as a freehold grant."

It is interesting to compare what is provided under the relevant Act to a President, who has retired from his office or to his widow. A President, or his widow, is entitled to a residence free of rent.

In the event an appropriate residence is not found, a monthly allowance equivalent to one third of the monthly pension, which works out to Rs. 8,000/= per month.

If Chandrika Kumaratunga lives for another 50 years, the total emoluments for rent would be Rs. 8000 x12 x50 = Rs. 4.8 Million.

The pension Her Excellency is entitled to, according to the Petitioner, is Rs. 25,000/= per month. On the same calculation, if she lives for 50 years, it is Rs. 25,000/= x 12 x 50 = Rs. 15 Million. So the total emoluments she will be earning as pension and rent allowance for 50 years would be Rs. 4.8 Million + 15 Million = Rs. 19.8 Million.

One would consider that, to obtain half an acre of land from the village of Madiwela in Kotte would be a very fair deal for the services rendered by her to the country as the President of the Republic.

Why shouldn't the Cabinet be generous to accommodate a President and bend the rules to grant her some land in Madiwala when after all the land is not in Colombo and not even Colombo 7.

But, the Petitioners have stated that the true facts regarding the land had not been disclosed and the location of the land, nor its true value had not been disclosed when the approval of the Cabinet was sought.

During her tenure of office, the President wanted to shift from the President's House to land, located facing Parliament and to build a Presidential Palace.

The media severely criticized this project which would have cost the tax payer nearly Rs. 800 Million. Ranil Wickremesinghe, when he was elected as the head of the UNF Government, duly abrogated the project, as it was one of the matters which came in for public debate and there was tremendous public agitation against this project.

Ranil Wickremesinghe said he did not understand why the President, when her term was due to end in 2005, should spend so much money to build a Palace, which the tax payers could ill afford.

Even if he was elected as the President, he would not occupy such a building, which was a monumental waste of public funds, Ranil said.

The Petitioners contended that she had requested this property, which would cost the tax payer Rs. 800 Million, be given to her as freehold property, on the understanding that this was in lieu of the official residence or the allowance she was entitled to, quite strangely, without any reference to that earlier given by Chandrika. It would then not revert to the Government after her demise.

Cabinet approval

Having sought Cabinet approval for this absolute grant, the Ministry of Public Security, Law and Order sought the approval of the Cabinet to allocate to her the premises No: 27, Independence Avenue, Colombo 7. It also sought money for the renovation of same.

Premises No: 27, Independence Avenue, Colombo 7, has been given to the Sri Lanka Foundation, from Crown land, on the Crown Lands Ordinance and at the time, relevant to this application, it was given to house soldiers named and as "Ranaviru Sevana".

The entire transaction was shady and devoid of transparency and Cabinet approval was sought to re-allocate another property owned by the Sri Lanka Foundation.

It is the contention of the Petitioners, that not even the Cabinet could award the said land and there is no legal provision which enables them to do so.

The former President Chandrika Bandaranaike Kumaratunga, said that she had given back the Madiwala property to the State on the 3rd of January, 2006. This alone is a victory for the indefatigable efforts and the diligence of the Petitioners and Peter Jayaekera. The reverting of the property took place long after the matter was made public.

The Petitioners contend that apart from the lack of moral and equitable grounds, the whole procedure adopted over the said premises, by Chandrika Bandaranaike Kumaratunga, was lacking in good faith.

They also submitted that as the premises, No: 27, Independence Avenue Colombo 7, remains vested in the Sri Lanka Foundation, the spending nearly Rupees 40.25 Million for repairs and refurbishing private property was illegal and had to be accounted for by those responsible for the same.

Peter Jayasekera and the Petitioners, who are also Attorneys-at-Law, have shown by example that there are still lawyers in this country who are prepared to take substantial risks, perhaps drawing the wrath of the Executive and risk being subjected to untold pressure from many a quarter, to prevent further steps being taken in this kind of application, where the once most powerful lady is subjected to the infamy of defending the allegations before the Supreme Court.

Much has been written of the Law week and the colossal sum spent on educating the public about their rights and duties and access to justice.

Peter Jayasekera has supported the application with the intention of not only exposing the myth of non-corruption of those leaders who often sermonize about honesty and integrity, but to also expand the scope of public interest litigation, which is the indispensable tool, for those who seek transparency in all financial transactions and which should also strengthen democracy, good governance and the Rule of Law.

Peter Jayasekera and his team of lawyers deserve all the accolades from those who cry for justice, good governance and the Rule of Law, for showing that all corrupt deals should be exposed when the time is opportune to do so.