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by L.Annadoure
(
November 14, 2012, Chennai, Sri Lanka Guardian) Rakna Arakshaka Lanka limited
is a Sri Lankan Government owned company which has come to be registered on
23rd Oct 2006 under the provisions of Companies Act and the official web site
of Ministry of Defence, Sri Lanka would state that the said company is carrying
on business in providing commercial security service for the protection of
public and private institutions.
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The Sri Lankan Government is mandated in law to submit draft Annual Reports along with the reports of Auditor General pertaining Government owned companies, Government Undertakings, Public Corporation before the Parliament .
The
web site gives us to understand that Rakna Arakshaka Lanka limited is
functioning directly under the Ministry of Defence, public security and Law
& order and the aforesaid company is said to have been established under
the vision of His Excellency the president Mahinda Rajapakshe .We are given to
understand that although the said company has been incorporated as early in
2006 it has begun its business ventures only on the 7th of Feb 2008.
The
Board of Directors of Rakna Arakshaka
Lanka limited company is comprised of 4 Directors and one Mrs.Leisha
Chandrasena is said to be the Secretary
to the Board of Directors.
The
objects with which the company has been incorporated are,
- to provide security to vital public and private institutions, installations, localities of economic interest inclusive of those connected with provision of national security enabling to maintain uninterrupted economy of the country,
- to assist the security Forces and the police by minimizing their engagements in security duties at vital public and private institution, installations, localities of economic interest outside operational areas enabling them to be engaged in active duties in operational areas,
- To assist in the development process of the country,
- To assist disaster management activities at times of national calamities,
- To assist the government in meeting the problem of unemployment,
to
be of assistance in the future welfare of ex-service and police personal and to
assist the Ministry of Defence, public Security, Law& Order by training
male and female security personal employed by
private security services.
It
is understood that Rakna Arakshaka Lanka limited company, according to the
information furnished in its web site, has been providing security to Public
Enterprises and Public corporations in Sri Lanka.
The
new web site for Rakna Arakshaka Lanka limited company which appears to be
under construction mentions for the
first time that the company is providing Air Security and Maritime Security i.e.,
providing Air Marshals and Sea Marshals
to the aircrafts and seafaring vessels.
We
will see about the nature of incorporation of Rakna Arakshaka Lanka limited. As
has been mentioned in the aforesaid website Rakna Arakshaka Lanka limited is a
limited liability company, a Government owned company and the company’s
Memorandum of Association and Articles will reveal the nature of the company
and the documents will indicate the amount of share capital contributed by the
Government and the share capital contributed by other members.
Sec
2(1) of Companies Act No.17/1982 describes what are private and public
companies. The relevant provision reads as follows, “ Sec.2.(1) Any seven or
more persons, or where the company to be
formed is to be a private company, any two or more persons, or where the
company to be formed is a people’s company, any fifty or more persons,
associated for any lawful purpose.
Companies
Act also provides for what is a limited company and unlimited company. The company
having the liability of its members limited by the memorandum to the amount, if
any, unpaid on the shares respectively held by them is limited company and a
company having the liability of its members limited by the memorandum to such
amount as the members may respectively thereby undertake to contribute to the
assets of the company in the event of its being wound up. Therefore the minimum
numbers of members required for formation of a private company are two and in
the case of a public company seven and a people’s company above fifty. Every
company has to keep registers of its members.
Admittedly
Rakna Arakshaka Lanka limited company has only 4 members in its Board of
Directors and there is the secretary for the Board of Directors who must be
paid servant and Companies Act stipulates requisite qualification for
performing the functions of a secretary and the present Secretary happens to be
one of the Directors in another company. Among the four Directors, three are
Government servants and the 4th Director of the Board is a retired Military
officer. The minimum requirements of Directors for a public limited company are
seven.
There
are legal mandates and requirements like
the filing of annual return, a statement containing particulars of total amount
of indebtedness, certified true copy of
balance sheet so as to know of the true and fair view of the profit or loss of
the company for a particular financial year, copy of audit report and the
report of the Directors themselves to know the state of affairs of the company.
In
the case of any mismanagement of the affairs of the company or commission of
offence like fraud or misfeasance, any aggrieved member of the company may bring to the notice of the Registrar of
companies of such a mismanagement seeking his intervention and initiation of
investigation into the matter or the
company in itself may pass appropriate resolution so as to bring the
matter to the knowledge and notice of
Registrar of companies or an application may also be filed before the
District court of the area where the company is situate, seeking for an order
for making an enquiry and further the Companies Act provides for initiation of
prosecution by the Attorney-General.
So
for the conduct of business of the public company is concerned it is only its
members who are the final arbiters to decide the change in the objects and the
nature of the business of the company and the area of its operations and if
such changes are necessitated. The
President of Sri Lanka who is also the Minister of Defence, law and order cannot at any stretch of imagination
interfere with the affairs of the company and Companies Act does not provide or
contemplate for interference or intervention
of that sort. The Government may interfere when there arise
a situation where a private of
the company be changed into a public company as enumerated under the Act.
Whatever the change that has to be brought in or any alterations to be made in
the Memorandum of Association and Articles, the members may, after deliberation
and passing the requisite resolution in a meeting convened for the specific
purpose, move for amendment or alteration and the Registrar of Companies alone
is empowered under the act either to allow or decline permission sought for
amendment or alteration in the Memorandum of Association and Articles.
We
have already discussed about Avant Garde Maritime Services private limited Ltd in
Sind Bad Military Floating vessel. The Avant Garde Maritime Services private
limited informs in its official web site
that it has entered into a joint venture with Government Owned Business
Undertaking (GOBU) of Rakna Arakshaka Lanka Ltd (RALL) of Sri Lanka to provide
infrastructure facilities for international maritime security services and the
same web site states that the former
Commander of the Sri Lanka Navy, Vice Admiral D. W. A. S. Dissanayake who is
now appointed as the Adviser on Maritime Affairs to His Excellency the
President of Sri Lanka is being placed
as advisor on the Advisory Board of Avant Garde Maritime Services private
limited. Sri Lankan people has a right
to know as to the kind of agreement or the exact understanding that has been
arrived at between a private security service
provider and the President of Sri Lanka
and why the President of Sri Lanka himself should be taking so much pains in placing his advisor as advisor to a
private company?
As one would find from the earlier web site
that the area of operation and business of security provider of Rakna Arakshaka
Lanka limited is within the island. The Avant Garde Maritime services limited is
also a company incorporated in Sri Lanka and a private security service
provider is not empowered or authorized to carry weapons of any sort except the
weapons for their self defence and the
Sri Lankan law permits private security agencies to possess and carry specified
weapons while escorting the persons who happened to carry monies belonging to
institutions. Neither the local law nor any other international law do provide
for transporting armaments en masse over International waters nor even across
the delineated Exclusive Economic zone in the International waters. At the time
the Sind bad was intercepted and its captain arrested it was informed that
there was huge amount of weapons of various sorts in the Vessel.
The
web site of Avant Garde Maritime
Services private limited states that the entire management of the company is
vested with the retired Military officers and we find that the objects of the
company is to provide convenient Infrastructure facilities for Private Maritime
Security Companies, to take over and return weapons and the company also boasts
very much that it is the most sought
after supplier of weapons and associated items to private Maritime security
companies and it is also not known whether the Defence Ministry has the right
to sell or hire out weapons to third parties and whether end user certificate
can be given to third party- private companies in respect the arms, ammunition
and weapons which belong to Sri Lankan Government. Nevertheless, the very
propriety of such an act is unwarranted and censurable. The said unfair and
unlawful practice has set a precedent already which in turn set in motion several
security providers themselves venturing into such an unlawful business and it may also embolden Nations to follow suit
Sri Lankan Government and as a consequence of such unlawful and unwarranted
business International waters would be infested with illicit arms traders.
So
for Sri Lankan Government is concerned,
it has, under the garb or pretext of providing security for safe passage of merchant and other seafaring vessels through
the international waters, has assumed on
itself a nonexistent powers so that the
weapons belonging to the Government could be disposed of surreptiously as there will no one question
the propriety of such an act.
The
owners or masters of Merchant ships and other vessels have to make their own
arrangement to have sea Marshals and permissible
weapons on board the ships for safety passage through International waters
after having been procured them from the states whose flag the vessels are
flown and it may also be the concern and botheration of States to accord
protection for the ships which are registered with them. NATO led flotilla of
war ships are already engaged in counter piracy operations in the Gulf of Aden
and Indian Ocean and similarly European Union Naval forces have also been
deployed to contain the menace of pirates on the seas in the high risk prone
areas. The Sri Lankan Government may volunteer to deploy its navy so as to join
the international forces in combating the pirates but instead the Sri Lankan
Government cannot become a trader in
illicit arms by taking undue advantage over the situation. Whatever the motive,
the question that lie before the Sri Lankan people is whether the Government of
Sri Lanka has taken the Parliament in its confidence and obtained due approval for carrying on and
conducting such business and if such an approval has not been granted then it
may be construed that such trade in weapons
is being carried on only illegally.
The
Defence Ministry web site has informed recently of an earlier news that Annual
Report of Rakna Arakshaka Lanka Ltd was handed over to Secretary of Defence Mr.
Gotabaya Rajapaksa but in reality such an Annual report should have been submitted before the members
of the company in a meeting convened for the said purpose and a certified true
copy of annual report should have been tabled before the Parliament so as to
enable the Committee on public Enterprise to scrutinize such a report and a
copy of such an Annual report ought to have been submitted before the Registrar
of Companies also. Rakna Arakshaka Lanka limited has celebrated its 4th
Anniversary recently and therefore Annual reports for the previous financial
years ought to have been tabled before Parliament of Sri Lanka and similarly Annual
reports for the previous financial years need also be submitted before the
Registrar of Companies.
It
is reliably learnt that before the military floating vessels came into being,
the Sri Lankan Navy used to sell arms, ammunitions and weapons to Private
Maritime Security service providers and it has earned several Million Dollars
from and out of that business and how the Sri Lankan Navy could supply weapons
to these private Maritime Security service Providers is also a question which the Committee on
Public enterprise has to probe in the interest of the Nation and it
is in the news that the Sri Lankan Navy has been supplying arms, ammunitions
weapons to 38 such private Maritime Security Providers and more than 50
Merchant Ships. The answers to questions like Whether such a business done by Sri Lankan Navy has been authorized by Committee on Public enterprise, whether
the business is lawful, whether the conduct of such business has ever came to
the knowledge of the committee on Public enterprise which examines the
Government owned business concerns , for how long the weapons are being
supplied by the Sri Lankan Navy to third party service providers and where went
all the amounts which were collected all these years, are necessarily to be
sought and found because Rulers who
speak of Nationalism, patriotism are
not patriotic any longer but strive hard
towards their self interests.
We
have earlier seen that the Defence Ministry under the guidance of Defence
Secretary has been supplying arms and ammunitions to Avant Garde Maritime
Service Private Company. Having been entered into a clandestine deal with the
Avant Garde Maritime Service Private Company, the Sri Lankan Government has
just inducted Rakna Araksha Lanka Ltd into the business so as to operate beyond
the country’s Exclusive Economic Zone in the International
Waters.
In the article ‘Sind bad the Floating military
Arsenal’ it has been stated that the web site of Avant Garde Maritime services
has mentioned that the Defence secretary spoke of there being of seven Floating
Military Arsenal in seven cities around
the word and it could not be ascertained which are the seven cities then. Now
we do understand that Sind bad the Floating military vessel was intercepted in
the Gulf of Aden, off the coast of Fujairah along with two other vessels which
accompanied Sind bad.
The
above picture will delineate the areas of operation of the floating military
Arsenal of Avant Garde Maritime service private limited and Rakna Arakshaka
Lanka limited in the International waters and it has also come to light that
two floating vessels are now patrolling off the coast of Galle. The total
number of floating vessels with which both the companies are engaged at present in transporting
illegal arms and weapons to these places is not ascertainable and Sri Lankan
Government is bound in law and a duty is cast on it to inform the Nation whether these vessels which are
engaged in transporting arms, ammunitions and weapons are the properties of the
Government of Sri Lanka or the properties of private persons so as to attest to the nation that its
activities are transparent and the laws of the land are being followed duly.
The
Defence Secretary has published a Gazette notification stating that land based
naval Armouries at Galle and Colombo would cease functioning from 15th Oct 2012
and that the Ministry of Defence would monitor all the activities pertaining to
the floating Armoury and Sri Lanka Navy would provide security and supervision
for service boats during weapon and sea Marshall transfer operation and control
of floating would be handled jointly in view of national security reasons. The entire arms, Ammunitions and weapons
which were in the land based armouries have been removed by the aforesaid
notification and there is no knowing as what happened those weapons and
therefore people must take steps to know about the missing weapons .
The
sudden induction of Rakna Arakshaka into
the illicit arms trade has given cause for grievance for Private Maritime Security companies because of the
change in the procedure in supplying weapons and the Private Security service
providers have to purchase weapons only from Avant Garde Maritime service private limited and Rakna Arakshaka
Lanka Limited. The Ceylon Association of Shipping Agents and others have taken
up the matter with the Defence secretary but their efforts has ended in vain
and in fact the Defence Secretary would defend his action by saying that Sri
Lanka is a Sovereign Nation and the business in vending weapons is lawful.
It
was in the news that 18 commercial vessels belonging to LTTE and their
Rs.20,000 crores were expropriated after the war. The Sri Lankan
Government has not informed the Nation as to what happened to those ships and there is no knowing as to
the present location those 18 commercial vessels and therefore there is reason
to believe that those commercial
ships have been commissioned for service to Rakna Arakshaka ?
It is recent news that a cargo vessel which has been intercepted by the
Defence Ministry made a claim that the vessel is the property of LTTE but it so
happened that it is the property of Malaysian National.
The
Maritime Zones Law, No. 22 of 1976, Sri Lanka, speaks of delimitation and
demarcation of Territorial Sea in the
international waters and the Nations signatory to the Convention on International Law of seas have to
legislate National law on the lines of Law of Seas and the sec. 3 of the said
Maritime Zones Law states that ships of all states shall enjoy the right of
innocent passage through the territorial sea so long such a passage is not
prejudicial to the peace, good order and security of Sri Lanka and any right thinking man would
question whether the same yard stick could not be applied or applicable to the
case of the territorial waters, contiguous zone or Exclusive Economic zone of
other Maritime Nations in whose waters
the Floating Arsenals pass through and in reality the floating Arsenals laden
with lethal weapons which ply and patrol
their waters should be posing danger and
threat to the safety of the region.
The
Merchant Shipping Act , Sri Lanka is
applicable to ships registered in Sri Lanka and such ships may be in any part
of the world and ships while being in a
port of Sri Lanka or within the territorial waters of Sri Lanka cannot be
chartered by the owners or masters
of the ships without permission having
been obtained from Director appointed under the provisions of the Act and failure to obtain permission is an
offence and to take the ship out of Sri
Lanka a licence need necessarily be
obtained from the Director and failure to do so will entail punishment and
similarly officer of customs has to grant a port clearance and without a port clearance no ship can be moved out of
the port and contravention of the provisions of the Act will entail punishment.
Whether the Floating Armouries have been exempted from application of provisions
of the aforesaid Act?
The
Avant-garde Maritime Services Private Limited is a signatory to The
International Code of Conduct for Private Security Service Providers but
whereas Rakna Arakshaka Lanka Ltd has not become a signatory to International Code
of Conduct for Private Security Service yet as the code contains certain
principles which create some obligations
on the part of Private Security
Providers (PSPs) with particular regard to international humanitarian law and
human rights law and therefore, is not such a failure an open affront to and
defiance of said law?
The
Standing Orders of Parliament of the Democratic Socialist Republic of Sri Lanka
prescribe rules pertaining to all the Committees, constitution of Committee of
selection, and the Committee on Public Enterprise and other Committees and it
is said that there are seven Committees and the Committee on Public Enterprise
is one which is relevant for our discussion. The Committee on Public Enterprise
consisting of 31 members examines the accounts of Public Corporation and of any
business or other undertaking vested under written law in the Government.
The
Sri Lankan Government is mandated in law to submit draft Annual Reports along with the reports
of Auditor General pertaining Government
owned companies, Government Undertakings, Public Corporation before the Parliament .
The
Government is expected to specify in great detail and justify to the
satisfaction of the Committee the proposed course of expenditure, Financial
procedures, planning, control and accountability which includes estimates, new
expenditures and taxation. Since Rakna Arakshka Lanka limited is Government
owned company the accounts of the company ought to have been audited by the
Auditor General as contemplated under the Financial control Act and the company
ought to have submitted a draft Annual Report along with the report of Auditor General to
Parliament in respect of the previous financial years. In the event of there being evidence and
proof to substantiate the claim that the legal requirements and legal
mandates have not been fulfilled and
complied with duly then we may safely conclude that Avant Garde Maritime service private limited
and Rakna Arakshaka Lanka Limited are bogus companies and that the proprietors of Avant Garde
Maritime service private limited and Rakna Arakshaka Lanka Limited are only the
Rajapakshe brothers!
