PBJ issue: Governance just a pipe dream

By W. Jayamaha

(October 04, Colombo, Sri Lanka Guardian) Last year, the Supreme Court in a landmark judgment, held that awarding 90% of the shares of Lanka Marine Services (LMS) to John Keels Holdings Ltd. was unlawful and restored it to the State. The Supreme Court also stated that Dr. P.B. Jayasundera (PBJ),then Chairman of the Public Enterprises Reforms Commission (PERC) had worked in collusion with Susantha Ratnayake of John Keels Ltd. to secure illegal advantage for the latter that were adverse to the public interest. PBJ was ordered to pay Rs. 500,000 as compensation to the State and was also asked to give an undertaking, by way of an affidavit, that he will not hold any post in the public service in the future. PBJ agreed and filed an affidavit to that effect.

After the retirement of the former Chief Justice, in July 2009, - one year after the judgment in the LMS case – PBJ filed a further affidavit in the Supreme Court requesting permission to withdraw his earlier affidavit on the grounds that the President had requested him to accept, in the “national interest”, posts he held earlier namely the post of Secretary to the Ministry of Finance and Secretary to the Treasury. The Supreme Court decided to inquire into this matter which is highly unusual because the Supreme Court, being the highest and the final authority in the administration of justice, does not usually go into settled cases.

However on September 24, a 7-judge bench by a 6 – 1 majority verdict permitted PBJ to withdraw his earlier undertaking in order to provide “relief” he had prayed for. Four days later, the President appointed PBJ to his previous posts.

This very interesting case, in my view, raises some fundamental legal and other issues which I hope will engage the attention of the discerning public. My purpose is to highlight some of these issues. Not being a lawyer, I shall confine myself to some general issues specially those which may have some bearing on public administration of this country.

Debarring a person from appointment to the public service is not a new thing in this country. Paragraph 7 of Chapter II of the Establishments Code lists the categories of persons not qualified to be appointed to the public service. Those who have been dismissed from the public service and those whose services have been terminated after disciplinary inquiry are two such categories; there are several others. The LMS case turned out to be virtually a disciplinary inquiry against PBJ because of the role he had played as Chairman of the PERC.

The Supreme Court found PBJ guilty of collusion with a top official of John Keells Holdings Ltd. to secure an undue advantage to the latter. So, under normal circumstances, PBJ would have been promptly removed from the public service for this serious misconduct without a disciplinary inquiry - such inquiry being superfluous once the Supreme Court had gone into the matter - and the operation of paragraph 7 of Chapter II of the Establishments Code would have automatically debarred him from holding any post in the public service in the future. It also must not be forgotten that PBJ held the posts concerned at the pleasure of the President and was liable to be removed even without assigning a reason. So, by requesting PBJ to give an undertaking that he will not hold any post in the public service the Supreme Court has not done anything sinister or wrong; if at all, the Supreme Court has helped PBJ to gracefully leave the public service which in any case he would have had to do.

In defence of PBJ it is said that he was penalized twice, once by imposing a fine of Rs. 500,000 and again by compelling him to give an undertaking that in the future he will not hold any post in the public service. This type of payment is not a fine. It is a token payment to the State primarily to discourage public servants from conducting themselves in a manner detrimental to public interest. Even conceding that the payment was a fine, there is nothing unusual in imposing two penalties in respect of the same offence. For example, when a public officer is sentenced to a term of imprisonment say on account of bribery, he is not only dismissed from the public service but he is also debarred for the rest of his life from holding any post in the public service. So, in that case there are really three penalties. In criminal cases where punishments are involved, the usual legal expression is “fine or imprisonment or both”. The Constitution itself uses that expression.

As far as PBJ is concerned the most important question is whether he was guilty or not of misconduct. The highest and the final court in this country has found him guilty and therefore he has to be removed from the public service whatever his qualifications and connections are. Once removed from the public service he is not qualified to be re-appointed. These are the bare rules laid down in the Establishments Code, applicable to every public officer irrespective of his position. If at all, they have to be applied more strictly to those holding higher positions.

The opportunity given to PBJ to resign the posts he held and to give an undertaking that he will not seek appointment to the public service thereafter seems to be, in my view, an unnecessary concession which has unfortunately diverted the attention from the main issue. In this context, is it proper for the President to have invited PBJ to hold the posts he held earlier. From the perspective of good governance, this is the most serious question. It is said that the President’s request was in “the national interest”. Incidentally, the Supreme Court found that PBJ’s conduct was “adverse to the public interest”. The President has not indicated any other reasons – he is not required to do so – to obtain the services of a person who has been found guilty by the Supreme Court.

We are told that PBJ has a specialized knowledge of economics and public finance and that perhaps may be the reason why the President is so keen to obtain his services. Whilst specialized knowledge in these subjects may be useful to perform the duties and responsibilities of the concerned posts, it is not in any way critical because today knowledge can be obtained by way of advice. There have been several distinguished Secretaries to the Ministry of Finance who were not economists. Honesty and integrity of character are, perhaps, more crucial qualities required at the highest echelons of the public service and unlike knowledge these cannot be purchased. As the Supreme Court judgment shows, it is precisely these qualities that PBJ seems to have been lacking.

PBJ seems to have filed a subsequent affidavit in a confidential cover in which he is supposed to have alleged that the former Chief Justice has been biased against him. This is a very serious allegation which, if proved, would vitiate the entire judgment in the LMS case. PBJ seems to have come to this conclusion after learning of some remarks supposed to have been made by the former Chief Justice on July 28, 2008 at the opening of the High Court in the Uva Province.

Then why did he not canvass the entire judgment on that ground immediately without waiting for almost one year to submit an affidavit. It seems clear that PBJ was waiting till the former Chief Justice retired to get an opening to re-open the case. The President’s very unusual request to accept his previous posts provided PBJ with the thin end of the wedge to re-open the case.

These days we are overwhelmed with so much talk on patriotism, sacrifice, good governance and the need to improve the quality of public administration. Therefore, it is pertinent to ponder as to the net outcome of this case in which an officer from whom one would expect the highest standards of conduct was involved. Apart from that officer getting away with a mere token payment, the message to the public service at-large is loud and clear. Although the necessary rules are in place (they have been there for a long time) they will not be applied fairly and uniformly. The high and the mighty can get away even after finding them guilty by the highest court. In this situation the so called good governance will be nothing but a pipe dream.

-Sri Lanka Guardian