One cannot absolve one’s self after returning land acquired illegally: Chief Justice

FR application challenging Cabinet grants to ex-President upon retirement:

Wasantha RAMANAYAKE

COLOMBO: A man cannot claim to be innocent after returning the money he had illegally acquired Similarly one cannot absolve him or her self after returning the land acquired by illegal means, Chief Justice Sarath N. Silva said when the Fundamental rights application challenging certain Cabinet grants to the former President upon her retirement was taken up for hearing yesterday.

The Chief Justice made the observation when President’s Counsel Nigel Hatch for first respondent former President Chandrika Bandaranaike Kumaratunga raised preliminary objections that one of the main issues in the application, the Madiwela Land, had been returned to the Urban Development Authority (UDA).

“You can’t dish out for yourself,” the Chief Justice noted.

The President’s Counsel maintained since the former President’s security was not covered under the President’s Entitlements Act, the petitioners could not challenge the number of security personnel detailed to provide security to the first respondent, still a prime LTTE target.

He also maintained that in terms of the Constitution there was no provisions to file public interest litigations.

The Court reserved the Judgement.

The Bench comprised Chief Justice Sarath N. Silva PC, Justice Shirani Thilakawardane and Justice Nimal Gamini Amaratunga.

Retired Presidents are paid out of the consolidated fund i.e. the public funds and the upper limits of such payments are specifically provided for in the President’s Entitlement Act No. 4 of 1986.

The counsel submitted that the whole process started after the fundamental rights application was filed before the Supreme Court to determine the term of the former President.

He submitted that the 15 respondent, the then Urban Development and Water Supply Minister Dinesh Gunawardane presented a Cabinet Memo to free granting of a plot of land in Madiwela area to Kumaratunga upon her retirement in lieu of her official residence, pension and other entitlements.

The Counsel submitted that the 15th respondent presenting the memo stated that it was beneficial to the country since the value of the land was insignificant in comparison to the value of the entitlements which she would forego such as the monthly rental of a house in Colombo 7 which was around Rs. 300,000 to Rs. 400,000 per month and her pension. The land would be given to her on free hold basis to put up a residence at her own cost.

Justice Nimal Gamini Amaratunga: Could the Government alienate State land without attaching any value?

Counsel Jayasekera: No, My Lord, there is a certain procedure to be adopted. But this Delgahawatte Land in Madiwela was tremendously valuable since it was first earmarked for the construction of the Presidential Palace and developed until the project was abandoned in 2001 following the change of the Government.

This was the particular land that the first respondent chose for the construction of her residence.

The Counsel submitted since the land to be given on the free hold basis she could sell it to any body freely unlike other state lands.

The Counsel argued that the first respondent observed in breach her solemn vow to renounce her other entitlements including the residence when she sought Cabinet approval to acquire the premises at the Independence Avenue to be used as her official residence.

The counsel contended that the first respondent relinquished the Madiwela land only after the petitioners filed instant application in the Supreme Court.

The Counsel submitted that she made the Sri Lanka Foundation to voluntarily surrender the premises at the Independence Avenue granted to the foundation by the then President J.R. Jayewardene in 1980.

However, the Counsel submitted that the voluntary surrender of the premises to the State had been illegal, thus Rs. 35 million spent on the repairs out of the public funds at the instance of the first respondent, was wasted.

The Counsel submitted that Cabinet had further approved 198 security personnel including police and Army Commandos, a personal staff of 64 and 18 vehicles illegally and in violation of the Act. He stated that the Cabinet could not decide on such issues since the Act specifically provided for such allocations.

Additional Solicitor General P.A. Rathnayake, PC submitted that the impugned Cabinet decisions had been subsequently revised.

Three petitioners, lawyers, Hiroshana Senerath of Kelaniya, D.M. Dasanayake and Ajith Liyanage both of Nugegoda, sought to quash the Cabinet decisions dated November 3, 2005 granting an extent of prime land located in Madiwela, security personnel, staff and vehicles in excess of the President’s Entitlement Act No. 4 of 1986.

They stated that the Cabinet decisions were arbitrary, unlawful and in violation of the Fundamental Rights of the petitioners. They stated that the implementation of the decisions would adversely affect the public finance of the country and would violate the rights of the petitioners.

Peter Jayasekera and K. Thiranagama and Kosala Senadheera appeared for the petitioners.

President’s Counsel Nigel Hatch appeared for the first respondent, the former President.

Additional Solicitor General P.A. Rathnayake PC and Senior Sate Counsel Indika de Silva appeared for the respondents.

The Court reserved the judgement.