Fraud On A Power – Exercised In Vaccinations Management?

By Chandra Jayaratne –JUNE 10, 2021

Chandra Jayaratne

The doctrine “Fraud on a Power” (also known as “improper purpose” doctrine) was one of the key fundamental building blocks in framing the potential charges in a high profile suspected corruption and money laundering case investigated under the ‘Yahapalanaya’ regime. This investigation was assisted, by a set of independent professionals acting as authorized independent volunteers. It appears that the prosecutors of the Attorney General’s department make limited use of the concepts of “Fraud on a Power”. The pigeon holed investigation report delved in to the real issues that should be pursed in a purported corruption and money laundering investigation; and in addition dealt with the failures in governance, failures of fiduciary duty, lack of professionalism, transparency, accountability, oppression and mismanagement and even willful misrepresentation. These findings regrettably had not been covered even in a specially appointed Commission of Inquiry, which cost the state coffers millions of rupees. More regrettably, the report under reference lies in many a cubby hole of the leading investigators and prosecutors, without essential follow up action; nor are these findings even being used to develop ‘lessons in good governance’, whereby similar actions can be prevented from being repeated in the future in any state entity.

Article 3 of our Constitution states “In the Republic of Sri Lanka, sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise” whilst Article 4 inter alia states “The Sovereignty of the people shall be exercised and enjoyed in the following manner:  the executive power of the people, including the defense of Sri Lanka, shall be exercised by the President of the Republic elected by the people;” It is thus evident that the President, the Cabinet and the duly appointed Secretaries of the Ministries, empowered with Executive Power by the Constitution must exercise such power for the benefit of the people; and are whilst holding such office and executing such power are committed to act as Trustees of the Sovereign People.

With reference to “Fraud on a Power”, Lord Parker in Vatcher v Paul judgment stated “ ….. the power has been exercised for a purpose, or with an intention, beyond the scope of  or not justified by the instrument creating the power”. In British Airways Plc case, Morgan J referred to this doctrine as “Abuse of Power” and went on to state “the purpose for which the power is conferred is necessarily a matter of construction and inference from the surrounding circumstances”. In Pitt v Holt, Lord Walker distinguished “Fraud on a Power” in two ways in which trustees exercising a power may go wrong. The first, “excessive execution” is where the trustee acts outside the scope of the authority conferred and the second is where the trustee acting within the scope of the authority, but in a manner which amounts to a breach of trust which is “sufficiently serious as to amount to a breach of fiduciary duty”. The second included instances, where the trustee exercised a power within the authority, but in such a way as to be guilty of “inadequate deliberation”, that is, “failing to take relevant considerations or taking account of irrelevant considerations”. The first instance of excessive execution makes the transaction void and in the second instances transactions are voidable. Trustees misbehaving with their power and where they act on considerations for their own or their family personal benefit or for the benefit of any other third party, outside the interests of the effective beneficiaries are definitely voidable acts and can in some instances be even void ab-initio. In Cloutte v Storey, Farwell LJ held stated that the exercise of power for an improper purpose is void and not merely voidable[1].

The readers of this article are kindly requested to review the following facts as narrated and assess, firstly whether the facts as set out as purportedly connected with the “Pandemic related Vaccinations Management” in Sri Lanka are accurate. Provided the purported case studies as noted below are factual and can be validated by evidence, the readers are requested to assess whether these actions tantamount to those in governance, including those directly involved and those in the apex of Governance under “Command Responsibility Principles” are guilty of;

* The violation of the Constitution and impacting on the Citizens Fundamental Rights to Life, Freedoms, Justice, Equity and Equality;

* The violation of any of the International Conventions to which Sri Lanka is a signatory and which have validation by local laws;

* The violation of International Humanitarian Law and connected Jurisprudence, including joint Criminal Enterprise and Command Responsibility;

* Any offenses under the Criminal Procedure Code;

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