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Sri Lanka public interest litigation debated at LBR-LBO ceo forum
18 Sep, 2009 11:57:53
Sept 18, 2009 (LBO) - The 28th LBR-LBO chief executive forum debated the economic impact of public interest litigation, with a four member panel made up of legal and private sector representatives.
Presentations were made by Rohan Samarajiva, head of LirneAsia, a think tank and a former telecom regulator, Preethi Jayawardena chief executive of Chemanex, Chandra Jayaratne, former chairman of the Ceylon Chamber of Commerce, K Kanag-Isvaran, President's Counsel and Arittha Wikramanayake, precedent partner of Nithya Partners and former securities regulator.

The discussion was moderated by Shamindra Kulamannage, producer of Lanka Business Report.

Shamindra Kulamannage: May I start with Mr. Kanag-Isvaran and Mr. Wikramanayake. You both referred to the application of PIL (Public Interest Litigation). The experience coming out of India is a fairly broad application of these. No doubt it benefits in cases concerning human rights, environment etc. But should essentially complicated public transactions be challenged in the same way you would approach, say an environmental case, or a human rights case?

K Kanag-Isvaran: Well, this is one of the problems which I believe has to be addressed urgently. Because before you find a person liable in law - say for wrongful transactions or fraudulent transactions - it is fundamental they should have the right to be heard fully and be represented. Now the problem is that the Supreme Court - for resolution of such disputed questions - in my mind is not the appropriate forum.

Shamindra Kulamannage: Arittha what’s your opinion? Is this - the Supreme Court - the forum?

Arittha Wikramanayake: Well I don’t think there’s any difference between the case that affects commercial activity and one that affects environment. Let’s take the Eppawala phosphate case for instance; that was a far more complicated case. I think the Supreme Court dealt with it very, very well. I think Justice Amarasinghe’s judgment was a landmark judgment that is cited all over the world as far the environmental protection is concerned.

The complaint here is not about the process - let me be very frank about that. The complaint here is that, the people complain they were rushed into the hearing. Unfortunately no one had the courage to get up and say, okay, enough is enough. We had a very, very strong Chief Justice, a brilliant Chief Justice let me add, and everybody caved in. Nobody had the guts to stand up to him. And that is the crux of this problem. It is not the process. It’s just that people think they didn’t get a hearing. That’s all.

Shamindra Kulamannage: In a pragmatic point of view do you think, Preethi, do you think Rohan, what Arittha says would have been possible? I mean he himself talks about the strength of character of the bench.

Rohan Samarajiva: I don’t appear before Sri Lankan courts. I have no idea about the strength of character or the honesty or the integrity of various individuals. Be they on the court or elsewhere. All I can say is that these are extremely complex matters. And whether I like the decision is not relevant. I’ve never argued that I don’t like the decision of one case or another. I personally think that we should be exploiting the phosphate in this country, not keeping it on the ground, letting the rain wash it into the rivers. That isn’t what's at issue.

I am talking about procedures, about process. I think in something I wrote, I mentioned that how we do things, justifies our character. I think we are getting caught up in this rush. I mean, we like to see the mighty falling, we like to see big companies being held to account, we like to see the former president being pulled down. That could be one explanation. The other is, plain and simple jealousy. You know the three wheeler slogan, "Rusiyawata wadiya lokuy eershiyawa."

Preethi Jayawardene: When you consider from a business perspective, the first thing is, any business transaction or a deal should have a prescriptive period. That is absolutely necessary. Secondly how I see this is; if it’s not done properly, I think it is always better to regularize rather than unraveling the whole thing, because the confidence of the investor is absolutely necessary, that is important. Also when you unravel something it tarnishes the image of the company, it tarnishes the image of the board, the directors, the senior managers.

I think the word unravel is not appropriate. If a transaction is found to be fraudulent it (transactors) may not be alive to the fraud at the time it came to pass, but subsequently if it is deemed to be fraudulent, one doesn’t look at images of these gentlemen. So if it becomes public that there had been a fraud, it should be examined properly in the right forum so that all parties are given a chance to state their case. Now my anxiety, my worry, is the Supreme Court is not the forum for that. That’s all.

Shamindra Kulamannage: Chandra, your views?

Chandra Jayaratne: I’d like to raise one specific thing. You have to agree that you have to unravel fraud, you have to punish.

But if you take guides of public policy, the Supreme Court is to make judgments or directions upon the taxation structure of this country. Now if you take the petroleum pricing. Do you think that is something going in the public interest? I mean a country cannot function. Leave alone the private sector if the Supreme Court is going to say that the taxation…I mean let us say tobacco is taxed at 87 percent of its exercise duty in the structure; smoking let's say if it is good, can they (the courts) say, no 87 percent is exorbitant pricing?

I blame the private sector. Private sector missed the bus. That’s what I am saying. The private sector - for what ever the reason - they looked at it but didn’t look at it in the eye and take actions they should have.

That particular thing it’s very difficult. You can’t have a market mechanism, you can’t have structured government functioning, you can’t even give the services to the people. They should have gone before the people had expected. So I think the private sector must be more strategic.

K Kanag-Isvaran: Chandra, that’s the point. We should ask ourselves and ask for answers. Are they areas in respect of which public litigation is not appropriate and if the business community is concerned then you must say these are not matters. But you cannot say, you can’t unravel fraud. So that is a no-go situation.

Shamindra Kulamannage: Judicial reform is not necessarily something the private sector can essentially push for?

K Kanag-Isvaran: Why not? Why not? Of course. There is a law reform commission. The private sector can write to us. I’m on the commission. Whether we can achieve what they want is another issue. But there are mechanisms, institutions. That institution is functioning.

Shamindra Kulamannage: I take you on your qualifications there. In the past has it been a practical approach?

K Kanag-Isvaran: We have had representation made. The business community never came to us. The business community came to us only in the company law advisory commission at the time we were drafting (the company law). But in respective of these issues we have had none. If it is made, we are willing to make a study. I’m committing my self and members of the law commission – I’m sure we are obligated to look at it and recommend something.

Arittha Wikramanayake: It's not only that area, there’s so much legislation being drafted, there’s so many regulations being drafted and it’s all put out for comment. It’s so rarely you get the private sector responding for any of that. I think Chandra knows that. We’ve talked about this on several occasions.

The private sector has suddenly awoken to the fact that there are three judgments they are faced with now and they are making a hue and cry over this. As I said in my presentation, it was a very same private sector that complained about this transaction. If anybody can stand up here and say that you did not complain about these three transactions at some time or the other, let’s see if anybody is willing to do that?

A lot of them came and complained about these transactions but nobody was willing to challenge it. Now somebody challenges it and they find fault with it.

Shamindra Kulamannage: There is also this question of principles of natural justice. Arittha you alluded to and dealt with the three judgements and gave a broad opinion of what you thought of the three judgments. You didn’t really specify which ones you were referring to though?

Arittha Wickramanayake: I obviously won't say what is what! All I’ll say is one is arguably good, one is bad and the third is at least ugly. That’s how I would categories. The transactions, not the judgments.

Shamindra Kulamannage: There is a question following a similar line. Can we ask the panelist to take a position on the theme of the evening, positive impact or negative impact on privatization,” I don’t know whether that’s trying to oversimplify the situation. But if you were to take a position what would it be?

Rohan Samarajiva: My conclusion would be that the impact would have been very negative.

Preethi Jayawardena: Absolutely there’s no doubt about it.

Chandra Jayaratne: I would say the private sector is to be blamed for where they are today as a consequence for this, for not doing what they should have done which is what they do in their business.

Arittha Wikramanayake: But where is a negative impact? You talked about the negative impact but it’s all anecdotal? Give me instances where it has deterred investment? Can you tell me one instance where somebody has turned back and gone without investing in this country because of these judgments? On the other hand I will tell you there are enough people who come here and are turned away because of corruption.

Preethi Jayawardena: No but Arittha, we have to talk about the future, not the past.

Arittha Wikramanayake: We’ll deal with it when it comes to the future. In the mean time there’s enough opportunity for the private sector to address these issue. But the fact is we can’t make a statement, we can’t be bold enough - at this point of time - to make a broad statement like ‘it has now deterred investment’. It hasn’t. The fact is there had been no big transactions that had been started off by this government because of its policy.

Rohan Samarajiva: People invest in Congo. I know of telecom operators who invest in Somalia, where you basically deal with warlords. They are going into a high risk environment - and they look for very high yields and in fact the deal has to be underwritten by the local warlord, because there is no proper legal system.

Shamindra Kulamannage: Mr. Jayaratne, you are the other private sector person. What do you think?

Chandra Jayaratne: I really think that, what we have to learn from this and what we should do for the future. And I think that yet remains an option. I think the private sector is scared on many things.

If they are rewarded they are silent, if one of their members is rewarded they are silent. I think we have to stop this thing. We have to take fundamental principles of the private sector. What is good for the nation as a whole, private sector as a whole and for business as a whole is being affected. Let us protest, let us give ideas, and let us open debate and dialogue.

I cleared with some lawyers who said in an intellectual debate around this issue there’s no contempt of court. Now this was known to the private sector but why didn’t the private sector react till today?

Rohan Samarajiva: Let me ask you where was the legal profession those days? Where was the legal profession who knows the law? Where were they other than R K W Goonasekara?

Arittha Wikramanayake: Look, Rohan, like the private sector we will not act… (interrupted)

Rohan Samarajiva: Of course, you got to appear before a very strong judge. I claim no particular courage because I am a lawyer who never appears before the court.

K Kanag-Isvaran: There is a problem there because lawyers in Sri Lanka are not, what can I say, as active socially, politically as they ought to be for obvious reasons, which Rohan articulated in his article. So that’s the problem. So that is true. Unlike, say in India, where they are extremely active. That is a result of several circumstances into which I cannot now go. The culture in Sri Lanka is such that people are not willing to articulate as freely as they would like to as we did when we were law juniors at the bar some 40 years ago.

Arittha Wikramanayake: It's also not the lawyers. You can’t lay the blame entirely on the shoulders of the lawyers. Because in several of these transactions parties were advised to go back to the courts and get these transactions reviewed at least so that there could be some sort of public debate on that. Parties are scared to do it. They were scared of this one individual. Let's be very frank about it. That’s what happened.

Rohan Samarajiva: Yes, but the issue is …I started working on this stuff when the bus transport arrangements were to be worked out by the Supreme Court. You know, all the buses had to stop before they got to Colombo and so on and as somebody interested in transport I thought ‘Wow what is this?’. I spend a lot of time in Delhi and I couldn’t believe the contrast. I wrote about the bus transportation issue in LBO (link story here) much before these particular cases came. So I can tell you that my concern about this overall trend in the Supreme Court predates these cases. But these cases actually show us very, very problematic outcomes in terms of process. But there has been a serious issue. And I just cannot understand why people tell me ‘Oh you better be careful’, ‘Oh you better hire a lawyer to look after your interests’. I am simply doing what any citizen should be entitled to do in a democratic country.

Arittha Wikramanayake: Yeah but Rohan that proves the point. The fact is nobody is willing to criticize these judgments because they are scared that something would happen to them. But your experience proved otherwise. The fact that you managed to write an article- it was a very strong article - and nothing happened to you, and that is exactly what we...

Rohan Samarajiva: Don’t praise me. Look at Victor Ivan who has written extraordinarily strong articles. I am nobody compared to Victor and has anything happened to Victor? If anybody wanted courage they only had to look at Victor.

Shamindra Kulamannage: I am taking a question here. ‘If natural justice has been violated can SC judges be brought to justice?’ We are looking at something more than a review.

Arittha Wikramanayake: It’s a very simple answer, no. It’s no. Once it goes up in appeal, once it goes to the final court nothing can be done thereafter. Let’s be very frank about it, it's not only in these three cases, there are other bad judgments, there had been bad judgments, there are bad judgments and there will be bad judgments. It's not only in this country; it happens all over. Take the US for instance - now that we are straying away from the topic – but take the famous judgment of the Supreme Court of the United States when it came to Bush’s election. Now that was a terrible judgment. The fact is these judgments exist everywhere. As Chandra says just get on with it.

Shamindra Kulamannage: Mr. Jayawardane, can I ask you to comment on Chandra’s prescription, it’s not necessarily a prescription, but he spoke about the need for chambers to lead the way and Mr. Kanag-Isvaran says ‘yeah if you come to us we will listen to you’. Is that practical?

Preethi Jayawardene: I think the chambers definitely will be able to play a better role as Chandra very rightly said. Because that is important; they can advice the private sector. Not only the private sector, everybody. What do you say, Chandra?

Chandra Jayaratne: Business too should be forward looking. If you take the company law thing, when you tell the members to send in the representations to look at things they will never act, they will never support. They will never support. They will wait till even after the law is done, they will just wait, they won’t even comply. When it hits them they start blaming everybody.

I think the private sector as a whole in this country operates in a different way; networks, reward, friendships and if it is good for me I don’t care about the others. That culture must change. If we want others to change, we must change first.

Rohan Samarajiva: May I ask about this law reform commission as a solution to our problems. Is it truly independent of the Chief Justice?

K Kanag-Isvaran: Oh yes. Law reform commission is not answerable to anyone. We come under the ministry of Justice, we are appointed for six years and our mandate is in the law reform commission act. Where advice is sought we give and we draft laws ourselves. There are several that we have drafted, sent to the ministry of justice, or the line ministry and they take it ahead. Now we have representations on matters of children’s interest, several issues, women’s issues. Currently we are examining several such issues and our report is laid before the parliament every year.

Rohan Samarajiva: So this issue has to be raised by a citizen. You cannot take it up ‘suo moto’?

K Kanag-Isvaran: Our mandate is we can recommend law reforms in certain areas. But this kind of issue… you see this kind of issue I will tell, has an impact on business. I know several business people are nervous. Because a threat has come, ‘look I am going to open up for the last forty to fifty years’. Now you can go up to 1815 the Kandyan convention to open up things. Why the hell did the British do all these things? So naturally anxiety is there.

But the point is that doesn’t mean corrupt or fraudulent things cannot be examined. The legal maxim is ‘fraud unravels all’, which means if you have been able to cover it up for so long, the moment it comes up, then time doesn’t begin to run. So when you speak of time beginning to run, in our jurisdiction you are talking about bringing a regular action in the courts of law. The prescription ordinance - which speaks of limitation of action – deals with institutional actions in the original courts. Now the time limit in the Supreme Court for fundamental rights is within one month of infringement or imminent infringement you must come, and indeed it says the judgment must be delivered within two months.

Now that has been expanded. Right or wrong is another issue. There were compulsions for this expansion; as Arittha said Justice Mark Fernando extended the time. So that’s why I say time is now ripe to examine these things and see, so that you can advice yourself, you can go to the lawyers and be advised, because there must be some kind of certainty even in this exotic jurisdiction which I personally believe is absolutely important to retain and foster.

Shamindra Kulamannage: Arittha you said the people who had judgments against them should have gone for review immediately. Is it too late now?

Arittha Wikramanayake: Well definitely so. I think as much as you talk about the 30 day rule, you can’t wait two years and go back and canvass a judgment. The fact is you should have gone before the same bench and canvassed it before them. What was the attitude of the private sector? No, we will wait till the Chief Justice goes off and we will try our chance thereafter. How can you do that? Is that justice? I think what’s sauce for the goose is sauce for the gander.

Chandra Jayaratne: I totally agree with it. All the time we are talking about these three judgments. The public interest litigation that has come on the environment; the private sector and chambers should have looked at. Are there any polluting industries? We should have taken the steps.

Now we are waiting. Let us say a similar public action stops the operation of one of our major companies, and then we will get on. We should take the necessary steps, ask for time if we want, come out in to the open if we are polluting. We will pay a price, we will do this, go to the CEA. You have to be transparent. You can't ask others to be transparent if you are not. You have to react as public citizens who are committed to …

K Kanag-Isvaran: That’s what you'll talk about - corporate social responsibility. Volumes are written in your annual reports on CSR. You know it's your obligation; you don’t have to wait till a fundamental rights application is made asking you to correct yourself.

Shamindra Kulamannage: Rohan you asked Mr. Kanag-Isvaran about the law reform commission. What do you think? ….

Rohan Samarajiva: I think it’s a long term solution, and I'm happy that it has been placed before us. But I think there have been egregious violations of natural justice where significant documents have been placed before the courts and they have not been paid attention to and where decisions have been given on matters that have not been argued before that particular bench. I think in this case there must be a shorter-term remedy which is a five judge bench.

Arittha Wikramanayake: Rohan, that’s a good point that you made. If a party alleges that relevant documents were not considered should not they have gone up for review immediately? The fact is that they might not have got a judgment in their favor but the facts would have been made public. At least that should have been done. I don’t think you can wait till benches change and then go and canvass matters long after.

Rohan Samarajiva: Let me raise this question. This particular judgment, the LMS judgment, it didn’t have a closing date, it went on and on for several months with all kinds of labour matters and resignation letters and various other things. It went on for maybe a year, I’m not sure. Now what is the statute of limitation on this? In a way one could say that this was dragged on to prevent a real challenge.

K Kanag-Isvaran: You raise a topic that is very current and one in which pronouncements have been made very recently in the Water's Edge case. There are two principles. One is the finality of the judgments. The Supreme Court is the final court; right or wrong that is the end of the matter. Our courts in the Jeyaraj Fernandopulle case in an exhaustive judgment where Justice Amarasinghe says this is the final conclusive, that is called ‘stare decisis’, the decision stands and you can't interfere with that. Unless you have the question, predictability and certainty in the law goes.

The other side is; it has an inherent jurisdiction to correct errors in the interest of justice. That is how it is formulated. He (Justice Amarasinghe) gives a series of examples of when that can be done. One of them is the question of what is called the ‘per inqurium rule’. That is if a court had not addressed a relevant rule of law or a statute or some judgment then it can correct it. Interestingly, one of the grounds that he says on which the court has a discretion to review is the fact that there is fresh evidence available after the delivery of the judgment which the court must examine because had it been before, it could not have come to that view. That is the limitation of the review as I see it. In the Water's Edge case court did say we can’t review this.

Chandra Jayaratne: Can I say one thing? The challenging was one option. Another option - I myself suggested it – specifically in the LMS case. All they had to do was put on your website all the documents from the first advertisement, the offer document. You don’t have to say anything, put the public documents for the public to decide.

Now they will make the judgment on their decision but the public would have a look and decide. If you do not want to go to courts at least declare. The public would have then seen if the judgment was right, have they missed out on something. If you do not want to go to court because you are frightened of somebody at least declare. Public documents should have been made public. Then the public would have known what was not considered.

Preethi Jayawardena: Chandra, what difference would that have made?

Chandra Jayaratne: That’s a different matter.

Arittha Wikramanayake: That was really a reputation issue. I think in that context the documents should have been published to show that things have not been considered.

Shamindra Kulamannage: Is it too late for that?

Arittha Wikramanayake: What’s the point? If you go back to courts and the present court also refuses that means they are confirming what the previous court has said. I think they are better off with living with what you have and hoping that everybody will forget it at some point of time.

K Kanag-Isvaran: The future is for the court itself to examine and advice it self and ourselves as to what are the limits on the exercise of its jurisdiction in the light of concerns expressed across the board on the exercise of it.

Arittha Wikramanayake: The fact is the new court has already spoken. The Water's Edge matter went before them and they refused to review it.

Shamindra Kulamannage: Correct me if I'm wrong, the Supreme Court has never reviewed any of its judgments?

Arittha Wikramanayake: There was one instance.

K Kanag-Isvaran: The judgment of justice Amarasinghe, in the Jeyaraj Fernandopulle case gives a whole series of instances where the court has reviewed judgments after the judgment on specified grounds. It may not be very impressive but the fact is it has been done and he says it is done in the interest of justice. So whether in a particular case if the court will do so is for the court to decide depending on the nature of the public interest is involved. What I say is though the finality of judgments of the Supreme Court is imperative for the rule of law - in the sense law must be predictable and be certain – but it still has a reservation that if I make a mistake I should have the right to correct myself. Whether I correct myself however is left to the discretion of the courts.

Rohan Samarajiva: I'm bashing my own profession, which is the legal profession and also the private sector is being blamed. I think we must also bash the politicians because the constitution gave a safeguard, which is the power to impeach the Chief Justice or any Justice and it was a puzzle to me why that avenue was not exploited during that period. In one article I said here are the sections that allow impeachment. I think we have to take culpability for electing people who don’t exercise the powers they have been given.

Shamindra Kulamannage: The public servants - have they taken the brunt of this?

Arittha Wikramanayake: Unfortunately public servants have been bearing the brunt of it and I think that’s pretty sad. This is one aspect I'm really concerned about; the fact is there are certain public servants who actually work. I’m not trying to curry favor with P B Jayasundera, I have worked with him for a long time; he is a brilliant person, impatient, he is a man who took decisions and he probably took short cuts. Unfortunately, the thing for PB is I don’t think he documented the reasons for the decisions he took and he had to pay the price for it. That’s the unfortunate side of the whole thing. The fact is that good public servants have been removed as a result of this.

K Kanag-Isvaran: Safeguarding is not impeaching persons, safeguarding is protecting institutions and maintaining the integrity of the institutions. That’s why the 17th amendment had a mechanism at least on paper, to maintain the integrity of institutions. All the institutions have collapsed.

Shamindra Kulamannage: Is this a problem in the private sector? Institutions are collapsing?

Preethi Jayawardena: The thing is this, if the transaction is corrupt and state assets are sold for a song, certainly action has to be taken. But because of these PIL judgments a psychosis has built up and no investor wants to come in and it's totally detrimental to the economy.

Arittha Wikramanayake: Hold on. Now the private sector, from the time the chambers were started, we’ve had labor regulations, investors never came and the war and corrupt politicians and investors never came? I can go on and on. The private sector must identify these reasons.

Preethi Jayawardena: That’s right in the past. But because of the recent three judgments things have changed and fear is building up.

K Kanag-Isvaran: I would say things have changed but I don't think it has scared away investors.

Preethi Jayawardena: I'm not saying it should be completely changed. The thing is, isn’t there any other way of doing this?

Arittha Wikramanayake: There is a way of doing it. If you read the statements by the new chief justice, he has made it very clear that he will not be as activist as the previous chief justice; that has been made very clear in several statements made by him. So I think you can reassure your investors who are scared to come to Sri Lanka. So I think the private sector should go back to labor regulations.

Chandra Jayaratne: What we have to learn out of this is to do things – going back to this fundamental thing – have we learned from this and done what we should have? If something is as bad we should have gone to seeking reforms to correct it. Don't look over to the past by looking over the shoulder, look at the future. That has not been done and I think that is where the public sector will face problems.

We could have satisfied investors by agreeing to a framework, Preethi, if we have agreed a framework we could have presented to the government.

Shamindra Kulamannage: What about a robust legal system? If there are inconsistencies isn't that a problem?

Arittha Wikramanayake: You need to wake up the legal system first before you make it robust.

K Kanag-Isvaran: We have a legal system, it's not different to any other legal system. We have our principals,we have laws, it's in the application thereof that you find something wanting, that is why you need to have guidance from time to time. You have in other civilized jurisdictions, a change of tack, this what we are going to do, directions are given, indications are given in which way they will go.

Because of the interest created and the fear psychosis created because of these judgments and public interest litigation, that's why I posed those questions whether time is not right for the court to take cognizance of these anxieties – they can do it on their own - and say look here you guys, these are the limitation we will place – I have thrown these questions that the court may wish to answer - are there any limitation on the type of cases you will entertain under a public interest litigation, because of the inappropriateness of the matter for an inquiry by the Supreme Court, where the cross examining of a witness, the testing of evidence and things like that are not unfortunately possible, it's not the forum. I would seek guidance from the Supreme Court.

Arittha Wikramanayake: Might I interject, the Supreme Court already provides such a procedure if required.

K Kanag-Isvaran: Article 36 of the constitution does authorize the Supreme Court to make rules in respect of the exercise of their jurisdiction. Rules have not been made.

Rohan Samarajiva: My question is taking the same argument. ‘Fraud if it is found unravels everything’. I think in justice violation of natural justice when it is found should unravel everything, if we have established that there were ‘mala fide’ judgments which were – not just bad, I’m talking about beyond bad - I think a five judge bench should remedy it. I think that’s the only way to bring some clarity and certainty into the system.

Why did justices have to resign and leave because they were not given cases? So we have a fundamentally broken system.

We have to look at the 17th Amendment and various other things and if the system is broken, I'm willing to look at the law reforms commission as well. But I don’t think the law reforms can undo the injustice. If there are injustices done to individuals--I think Dr. P B Jayasundera’s name was mentioned in this forum, if there was injustice done to him--it should be unraveled.

Chandra Jayaratne: I think what deters investment in this country is inflation and bad macro management. Accepted!

I would like to ask our private sector, there is a piece of legislation in this country which holds the secretary to the treasury responsible for achieving a certain macroeconomic target by a certain date which has never been met. Has anybody thought of going to the Supreme Court and challenging the government on its own laws of this country? Either they have to change that law then or they have to meet with it.

Rohan Samarajiva: There is rampant disregard for law in this country. My successor is telling school children whether or not they can carry mobile phones, I would like to know under which law this man is acting? These are the kind of things that are going on in this country. That means the system is broken.

Preethi Jayawardena: I’m referring to Chandra’s point. Well, we had a fundamental problem the huge macro imbalance. We all accept that. But since lately because - I’m in the monetary policy consultation committee I am saying - with the relaxation of the monetary policy we have been able to bring things under control. That is the very reason why the IMF gave us the loan. But, still there is no private investments coming into the country. The ground situation, the macro situation is being put right. Reserves have gone up to three billion dollars. The thing is the economy is being put into shape. And the other thing is the biggest obstacle was the war. I mean that is the greatest achievement we have been able to get. That is sorted out.

Rohan Samarajiva: Let’s take this very example. We had money printing. We had inflation creating behavior and there was resistance in the public sphere, there was public debate. We had similar kinds of bad behavior on the judicial front and we had nothing. We had no public opinion, there was no public debate and even the few people who spoke were called by their friends and relatives and told ‘Oh my god don’t do that.’

Shamindra Kulamannage: Arittha I don’t profess to know what the thinking was on the LMS case and the BOI case, but if I were to hazard a guess I think that they thought a review was more likely later on than currently. Isn’t that a very pragmatic way to approach it?

Arittha Wickramanayake: Well I don’t know whether it is pragmatic. Well, only time will tell. They might go before that court but I don’t know whether they are taking a chance on that. But if I was dealing with the LMS case I would have gone before the court immediately. I would have gone for review immediately because that’s one of the transactions which I say was one of the good transactions. If that was so and they were done transparently and if you could have defended it they should have gone before that court and tried to defend it. I don’t know what the reluctance was.

Shamindra Kulamannage: What do you say about timing Mr. Kanag-Isvaran?

K Kanag-Isvaran: Timing, you see there is a point that Arittha makes. You wait till the bench goes or the big player in the bench goes and go there. That apart, it’s the power of review that’s the fundamental issue here. Then arises what is the ground on which the Supreme Court is going to entertain a review. Then the question arises if the three judges made the judgment. Ordinarily you should go before them. If one is missing then you must have as much as possibly the same bench. Now under the doctrine of what they call ‘stare decisis’ - this is all established law from a long time ago. Now if it is a three judge decision. If you want to over rule it or review it you should go to a five judge bench. Now I am told in the newspaper Mr. Jayasundera’s application is going to be reviewed or heard by a five judge bench on Thursday. I don’t know grounds under which the review is made, except to say that the president has said that he wants him. If that’s a proper ground for review I don’t know. But established law as I told you is there; Jeyaraj Fernadonpulle’s case has all the laws in Sri Lanka collated as to what the grounds on which a review can be made. So we’ll wait and see.

Arittha Wikramanayake: This is not against the LMS judgment. It’s Dr. Jayasundera’s application.

K Kanag-Isvaran: They have apparently said they are not reviewing the judgment. It is the application of the particular gentleman on a particular basis.

Shamindra Kulamannage: Gentlemen we’ve had a robust discussion. Time for closing arguments, can I go to you, Rohan?

Rohan Samarajiva: I’d like to reiterate your principle, that fraud once discovered unravels everything. We agree on this issue, that investigating and discovering and proving fraud is a very complex matter that generally could not have been done in the Supreme Court given the way that it functions. Then should we be unraveling everything, is one question?

The second question is, if injustice has been done by the highest court in this country, doesn’t that unravel everything? Why are we suddenly looking at precedent and so on? You should read these decisions. They barely cite other court cases. I mean, I have to strain to find references to other court cases. And this is a day and age we have things on the web and so on and so forth. So why are we suddenly giving a lot of respect for precedent, when in fact fundamental injustice has been done by a court that has not respected precedent? I think the answer is the five-judge bench.

Preethi Jayawardena: What I say is that, you have to have a prescriptive period that is important. And secondly you have to see – if there is corruption, if there is irregularity - you have to see whether certain parts could be regularized rather that turning it completely upside down. Because that will definitely give confidence.

Chandra Jayaratne: Very simple, let us even at this late stage, as the private sector, place the nation first and be forward looking.

Arittha Wikramanayake: All I’m saying is there are three judgments we are concerned about. The judgments have been delivered, the impact has been felt, let’s not whine about it. The chance of this type of judgment coming out in the future is very, very remote. But at the same time I don’t think we should find fault with the process itself because the process is good. So let’s not throw out the baby with the bath or whatever, simple as that.

K Kanag-Isvaran: We can’t recover the past. The future of course is for us to win or lose based on applicable rules of law. Whether we achieve that, is to be seen.

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