Full Text Of The Petition: Propriety Of Conduct Of Chairman, Bribery Commission In Question
The Commission to Investigate Allegations of Bribery or Corruption is required to carry out a key task. The elimination of corruption and impropriety in public office by using the legal powers given to it by law. It has an investigative arm and a prosecution arm which give it serious muscle by law.
Jagath Balapatabendi
However, several political commentators and legal experts contacted by The Colombo Telegraph, effectively emphasized that in order for such a Commission to achieve its desired objective of eliminating corruption, it is necessary for the Commission to be free of political interference. Such freedom is absent, after the 18th Amendment to the Constitution, which repealed the safeguards created by the 17th Amendment. At the moment, all appointment to key judicial and public offices is made at the sole whim of the Executive President (Mahinda Rajapaksa). There is a ‘Parliamentary Council’ created to give the President its views on the suitability of nominees, which has no teeth and can make no binding decision or veto. It is widely condemned as a mere cosmetic constitutional device of no functional use.
In this situation, the integrity and reliability of holders of the highest offices is often called in question. Appointed by political patronage to the Rajapaksa Regime, many key public and judicial officers blatantly engage in various types of conduct which are against international norms of integrity and propriety. According to a key political commentator spoken to by The Colombo Telegraph, they do so, secure in the knowledge that the Rajapaksa Regime will protect them, as long as they remain faithful and do the regime’s bidding.
Serious concerns have been raised in recent times that the Bribery Commission is now being abused to intimidate and harass political opponents and falling out of grace with the Rajapaksa Regime.
In this background, the latest scandal is the revelation that retired Supreme Court Judge D. Jagath De S. Balapatabendi who as Chairman of the Bribery Commission is required to be independent of involvements or interests in relation to private sector companies, has acted as an arbitrator in a commercial dispute. The propriety of his functioning simultaneously as an arbitrator while being Chairman, Bribery Commission has been challenged, in a petition to the High Court of Colombo on the grounds that it is contrary to public policy.
In Case No. HC (Civil) WP 64/2013/ARB, the Petitioner (Delmege Forsyth & Co. Ltd.), seeks to have an award made on 20th February 2013 by a private arbitral tribunal presided over by Rtd. Justice D. J. De S. Balapatabendi after hearings conducted while holding the office of Chairman, Bribery Commission set aside. It is urged that the award is perverse and requires to be set aside as being contrary to public policy.
Here is the full text of the Petition, which is self-explanatory:
IN THE HIGH COURT OF THE WESTERN PROVINCE
SITTING IN COLOMBO
IN THE EXERCISE OF ITS CIVIL JURISDICTION
YCC EXPORTERS LIMITED
No. 133/8, Gothami Road
Rajagiriya
CLAIMANT
Vs.
DELMEGE DISTRIBUTORS (PVT) LTD.
No. 101, Vinayalankara Mawatha
Colombo 10.
RESPONDENT
AND NOW
In the matter of an Application to set aside Arbitral Awards in terms of Section 32 of the Arbitration Act No. 11 of 1995
DELMEGE FORSYTH & CO. LTD., with which Company DELMEGE DISTRIBUTORS (PVT) LTD., is nowamalgamated with,
and of No. 101, Vinayalankara Mawatha
Colombo 10.
RESPONDENT-PETITIONER
H.C. (Civil) WP Case No. 64/2013/ARB Vs.
YCC EXPORTERS LIMITED
No. 133/8, Gothami Road
Rajagiriya
CLAIMANT-RESPONDENT
SHIRANI THILLAKAWARDENE SWORN IN AS ACTING CJ
April 16, 2013
