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IMF, World Bank & ADB Agenda On Privatisation (Volume III)

`Colombo Port Bunkering Privatisation’ under IMF, World Bank and ADB privatization agenda, discloses a scandalous privatization, annulled as illegal and fraudulent by a 3-Judge Supreme Court Bench of Sri Lanka, presided by Chief Justice, Sarath N. Silva; compelling Secretary, Finance Ministry / Secretary Treasury, P.B. Jayasundera to resign. It involved, John Keells Holdings Ltd., an UN Global Compact Co. committed to combat fraud and corruption.

It is an `eye opener’ on socio-political realities, of those holding selected and elected influential and powerful public office, including Secretary, Finance Ministry, P.B. Jayasundera, compromising national and public interest, with scant regard for the `rule of law’, and hollow dictates by international agencies, on governance, transparency and level playing field.

President Chandrika Bandaranaike Kumaratunga, in a Memorandum to Cabinet Ministers opposed this privatization. Prime Minister Ranil Wickremesinghe disregarding the President had pushed the deal, with his Advisor, former Secretary, Ministry of Finance, R. Paskaralingam; approved by Economic Sub-Committee of Cabinet, including Finance Minister, K.N. Choksy, PC.

It reveals condoning of fraud and corruption by confidantes of those at helm in a country; with governments and society uninhibitedly bestowing upon corrupt miscreants, even more recognition and position, without arraigning them, as warranted, before the law; President Mahinda Rajapakse re-appoints, P.B. Jayasundera, Secretary, Finance Ministry / Secretary Treasury. Susantha Ratnayake, continues as Chairman, John Keells, and helms Ceylon Chamber of Commerce; appointed Chairman, Sri Lanka Tea Board, by Government.

New Chief Justice, J.A.N. de Silva and other Supreme Court Judges act to accommodate necessity of President Mahinda Rajapakse, when P.B. Jayasundera is permitted to be re-appointed to same powerful position. A sole woman, Justice Shiranee Tilakawardena courageously dissents, upholding principles of moral turpitude and democracy to keep organs of State within the law – `anyone would balk at such re-appointment’; 2 pages of Judgment suppressed from media.

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President Chandrika Bandaranaike Kumaratunga kept her word, and never did she interfere in the work I performed, as Chairman, Public Enterprises Reform Commission. On the contrary, she endorsed and complimented my actions. When I tendered my resignation in November 2005, in the circumstances of her respecting a Supreme Court Ruling, having had to prematurely vacate Office, as President of Sri Lanka, in November 2005, in her Letter of acceptance of my resignation she stated – ‘I take this opportunity to place on record my appreciation of the tremendous amount of work done by you as Chairman, PERC, during your short tenure of office. I thank you for rendering an excellent and professional service in finalizing a large number of complex assignments coming within the purview of PERC’

Secretary, Ministry of Lands by Letter dated 11th January 2005 forwarded to the Secretary to the President, had intimated that the Secretary to the President had informed the Commissioner of Lands, that President Chandrika Bandaranaike Kumaratunga had approved the transfer of the Land to Lanka Marine Services Ltd., and forwarded Instrument of Transfer to be signed by the President, after the payment of Rs. 1,199,362,500/- (US $ 12.4 million) is recovered by the Treasury from Lanka Marine Services Ltd.

Consequently, the ‘Seal’ of the Republic of Sri Lanka had been caused to be placed under the hand of President Chandrika Bandaranaike Kumaratunga on the Instrument of Transfer dated 19th January 2005, and it had been attested by the Addl. Secretary to the President, in which Transfer Instrument had been expressly recorded that Lanka Marine Services Ltd., had paid Rs. 1,199,362,500/- (US $ 12.4 million) to the Treasury, and that the Treasury of the Government of Sri Lanka had received such payment.

Upon the Parliamentary Committee on Public Enterprises, probing the privatization, among others, of Lanka Marine Services Ltd., then Chairman, Public Enterprises Reform Commission on 21st March 2006 had addressed a Letter to Secretary to the Treasury, P.B. Jayasundera, requiring confirmation of receipt on 19th January 2005 by the Treasury of the above purchase consideration of Rs. 1,199,362,500/- (US $ 12.4 million) for the Land from Lanka Marine Services Ltd., as had been stated in the Instrument of Transfer.

5 Months thereafter on 23rd August 2006, an Officer, signing for Director General, Public Enterprises, Treasury, replied confirming that the Department of Treasury Operations had not received any money in this regard from Lanka Marine Services Ltd.; thereby contradicting and giving the lie to what had been recorded in the Instrument of Transfer, on which the signature of President Chandrika Bandaranaike Kumaratunga had been caused to be placed.

Subsequent examination of the Annual Accounts of Lanka Marine Services Ltd., for Financial Year Ended 31st March 2005, revealed that there was no record, whatsoever, in these Annual Accounts that a payment of Rs. 1,199,362,500/- (US $ 12.4 million) had been made for such Land by Lanka Marine Services Ltd., a fully owned Subsidiary of John Keells Holdings Ltd., a UN Global Compact Company since 28th May 2002 – thus committed to combat fraud and corruption, upholding the UN Convention against Corruption of December 2005.

Even more revealingly, the location of the new project of John Keells Holdings Ltd., stipulated in the Application dated 20th March 2002 to the Board of Investment of Sri Lanka, had been given to be at the Address, No. 69, Walls Lane, Colombo 15, which was the Address of Lanka Marine Services Ltd., and the extent of Land stipulated, as 8 Acres 2 Roods and 21.4 Perches, which was the identical Land of Lanka Marine Services Ltd.

Shortly thereafter on 25th September 2002, under and in terms of Section 24 of the Board of Investment of Sri Lanka Law No. 4 of 1978, then Minister in charge of the Board of Investment of Sri Lanka, G.L. Peiris (now Minister, External Affairs), published Regulations in Gazette Extraordinary No. 1256/22 of 1st October 2002, extending Board of Investment of Sri Lanka tax concessions, to include to any existing enterprise engaged, inter-alia, in the business of petroleum.

Excerpts from Judgment of Chief Justice Sarath N. Silva :

‘He (P.B. Jayasundera) has not only acted contrary to the law, but purported to arrogate to himself the authority of a Executive Government. His action is not only illegal and in excess of lawful authority, but also biased in favour of JKH.’

‘The findings in the judgment demonstrate that the action of P.B. Jayasundera, 8th Respondent has not only been arbitrary and ultra vires, but also biased in favour of John Keells Holdings Ltd., The allegation of the Petitioner that he worked in collusion with S.Ratnayake of John Keells to secure illegal advantages to the latter, adverse to the public interest is established.’

‘Thus public enterprise reform, including divestiture, could never descend to be a shadowy, slithering process.’

Lalith Weeratunge, Secretary to President, Mahinda Rajapakse, addressed Letter dated 25th May 2009 to P.B. Jayasundera, inter-alia, stating :

‘Considering the vast knowledge and experience you command, while acknowledging your honesty and integrity, His Excellency the President is of the view that it is a waste that your services are not available to the Government particularly in the present context’

Excerpts from the dissenting Judgment of Justice Shiranee Tilakawardane:

‘…..When any incumbent President exercises powers he or she is also under the same Constitutional mandate to act in accordance with the Doctrine of Public Trust….’

‘…..“if there is one principle which runs through the entire fabric of the Constitution, it is the principle of Rule of Law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the Rule of Law meaningful and effective.” ‘

‘It needs to be mentioned that the extent and magnitude of the findings against the Petitioner as set out in the Original Judgment are so strong that even the most forgiving employer would balk at his re-employment at such a record of moral turpitude.’