Can Judicial Activism Encourage Enhanced Governance Accountability?

By Chandra Jayaratne –FEBRUARY 1, 2022

Chandra Jayaratne

Business, media, civil society and citizens in unison lament today that the public services accountability for good governance is far below international best practice standards; and even well below the levels seen 3 to 4 decades ago in Sri Lanka. A majority of the public servants of the current generation regrettably fail to demonstrate and live up to the expectations of society as ‘servants of the public’. They consistently fail to demonstrate unwavering commitment to serve the citizens with care, adhering to expected standards of quality, efficiency and service excellence. Importantly a majority also fail to demonstrate essential qualities of equality, integrity, professionalism, non-discrimination and independence in decision making, following best practices of administrative conduct and ethics. In most instances they are either guided by political directives, third party influences and personal interests, instead of acting with independence in the best interests of the citizens and the country as a whole.

With the Audit Services Commission with powers of imposition of surcharges on public servants being disbanded following the adoption of the 20th Amendment, the politicization of the operations of the parliamentary oversight committees, public services commission and other independent oversight bodies and failures to impose unbiased disciplinary action on those in deficit of standards in AR’s and FR’s, in a context where the Presidential Secretariat and Finance Ministry too ignores the paramount need to assure financial discipline and long term socio economic justifications based resource allocations and spends, all options in exerting pressure on the public servants to perform within a framework good governance remains totally compromised.

One option to rein in errant public servants, who carry out unprofessional, irrational, egoistic, illegal and or unethical directives in governance, which the public servants are well aware will lead to losses to the state, business, and citizens, is by effectively leveraging the provisions of the Bribery Act, under section 70 – Corruption. This section reads as;

70 – Any public servant who, with intent, to cause wrongful or unlawful loss to the Government, or to confer a wrongful or unlawful benefit, favour or advantage on himself or any person, or with knowledge, that any wrongful or unlawful loss will be caused to any person or to the Government, or that any wrongful or unlawful benefit, favour or advantage will be conferred on any person –

(a) does, or forbears to do, any act, which he is empowered to do by virtue of his office as a public servant;

(b) induces any other public servant to perform, or refrain from performing, any act, which such other public servant is empowered to do by virtue of his office as a public servant;

(c) uses any information coming to his knowledge by virtue of his office as a public servant;

(d) participates in the making of any decision by virtue of his office as a public servant;

e) induces any other person, by the use, whether directly or indirectly, of his office as such public servant to perform, or refrain from performing, any act,

shall be guilty of the offence of corruption and shall upon summary trial and conviction by a Magistrate be liable to imprisonment for a term not exceeding ten years or to a fine not exceeding one hundred thousand rupees or to both such imprisonment and fine.

Thus any public servant who, with intent, to cause wrongful or unlawful loss to the government or with knowledge, that any wrongful or unlawful loss will be caused to any person or to the Government, does, or forbears to do, any act, which he is empowered to do by virtue of his office as a public servant; or induces any other public servant to perform, or refrain from performing, any act, which such other public servant is empowered to do by virtue of his office as a public servant; or participates in the making of any decision by virtue of his office as a public servant; or induces any other person, by the use, whether directly or indirectly, of his office as such public servant to perform, or refrain from performing, any act, shall be guilty of the offence of corruption.

The limbs of the relevant section highlighted above expresses a determination that an offence of corruption is deemed to have been committed even in instances where a public servant or any other person have not personally benefitted from any official decision making or act carried out or directed to be carried out, where there is intent (mens rea – the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.) and there is knowledge, that any wrongful or unlawful loss will be caused to any person or to the Government.

Sunday Times Business of 30th January reports that “Massive loss from SL’s hasty shift to organic farming” – “Sri Lanka’s unplanned shift to organic farming from chemical based agriculture practices has triggered a man-made crop disaster and incurred a massive loss of around US$1.04 billion, official provisional estimates and data of trading economic indicator models showed”.

In the above context, where any public servants in the knowledge that massive losses could be caused to the government, farmers and even the citizens as a whole, by adopting a policy of organic agriculture only, without due notice and long term preparatory actions, and yet participated in the implementation of the said policy; and where they knowingly participated in such wrongful decision making, implementing and getting other public servants to engage in the implementation process may be guilty of corruption in terms of the provisions of section 70.

The above interpretation must be validated in the context that the policy was announced and implemented and yet continues to be in place, despite severe objections, protests and advocacy from the very inception, by many in state and private sectors leaders, as well as academia and professionals. The concerned public servants ignored the best professional advice of competent persons (both local and international), despite such advisors being experts in their field of science and practice. Further these public servants ignored the available best scientific evidence and also experiences from other territories supported by well documented case studies.

Would such arrogant, irresponsible, unscientific and unprofessional decision making, followed by implementation and enforcement action, disregarding all available evidence and advocacy not be sufficient ground in establishing and proving before a court, both the intent to cause wrongful loss by the public servants concerned who were well endowed with knowledge that a loss may be caused by such action as predicted by many experts in the field and widely publicized over the media. Thus with the required ‘mens rea’ and ‘knowledge of the loss’ being present, will the public servants connected not have engaged in an acts of corruption in terms of section 70, especially where the losses have been since established and the amount of such losses are significant and the negative impacts widespread, having affected a majority in society.

The action steps leading such a policy being implemented was not merely a reckless policy decision, as it was articulated both publicly locally and in international forums as a key strategic competitive advantage seeking national policy action. Public servants concerned outright rejected and ignored the best scientific advice of competent persons even within the public service responsible for tendering best advice to the superiors? In the light of available evidence there could be sufficient evidence to indict the public servants connected with this debacle.

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