27 November 2024 01:06 am Views - 222
An areal view of where Mahinda Rajapaksa’s official residence, which underwent renovation, is located
Daily Mirror Newspaper made an appeal to the Right to Information (RTI) Commission on March 29, 2023, (Appeal No: 357/2023) seeking its intervention to obtain the said information which is of public interest. The order was delivered on August 2, 2024, requesting the Public Authority to issue the requested documents with copies to the RTI Commission on or before October 15, 2024, which directive was never complied.
Mahinda Rajapaksa during his last tenure as the Prime Minister submitted a Cabinet Memorandum (PMO/CM/03/2021) in January 2021, seeking allocation of funds for the maintenance and repair of his official residence at Wijerama Mawatha, Colombo 7. The residence was given to him after his retirement as the country’s Fifth Executive President. Later on September 27, he once again submitted yet another Cabinet Memorandum (PMO/CM/19/20210) seeking allocation of funds for essential renovations and modernisations to the same residence; which was to provide space for official duties at this official duties.
Through the first Cabinet Memorandum No: PMO/ CM/ 03/ 2021, dated January 5, 2021, Mahinda Rajapaksa sought cabinet approval to allocate funds for the maintenance and repair of his official residence.
It further states, ‘Under the facilities provided to former President in accordance with the President’s Entitlement Act, No: 4 of 1986, and the decision of the Supreme Court three Judge Bench regarding the application of the SC FR 503/2005, the house at 117, Wijerama Mawatha, Colombo 7 has been handed over to me as the official residence of the former President after the retirement from the Presidency as the Fifth Executive President.
‘My new term as the Prime Minister from August 9, 2020, and the official residence at Wijerama Mawatha, Colombo 7, is also regularly used for official duties to be performed by the Prime Minister and official functions such as diplomatic meetings. Accordingly it is proposed that the cost of maintenance and repair which required to maintain the same should also be borne by the Prime Minister’s Office, considering this official residence also an official residence of the Prime Minister is appropriate.
‘In the view of the above, the approval of the Cabinet Ministers is sought to bear the recurrent and capital expenditure incurred in maintaining the same by the allocations under the Expenditure Head of the Prime Minister’s Office or by the additional allocations obtained from the treasury as required, considering the official residence of the former President as the official residence of the PM, only to be limited only to my current term of office’.
Presenting the second Cabinet Memorandum –PMO/CM/19/2021, dated September 27, 2021, Mahinda Rajapaksa has stated that the Engineer who oversees the maintenance and modernisations of the Prime Minister’s Office has recommended to expedite the work to provide necessary space for official duties.
It further states, ‘It was decided to carry out the said renovations under the labour contribution of Sri Lanka Navy based on the principles of prioritizing safety and reducing cost, to procure building materials and equipment required as well as all other suppliable items required for construction from the Lanka Building Materials Corporation Limited (LBMCL), to obtain civil engineering knowledge required for construction by the SLN and to obtain the architectural and interior design consultancy service which is an essential component from the LBMCL. Renovations are already undergoing by the SLN as per the specifications provided by the LBMCL.
‘Accordingly, the approval of the Cabinet of Ministers is sought to procure the items and consulting services from LBMCL a state owned institution, without calling for tenders and to enter into agreements with them as required’.
‘It is observed that procuring the building materials and equipment required as well as all other required items for this renovations through LBMCL would be more efficient and effective’.
Cabinet approval was sought to directly purchase the required materials from LBMCL and to obtain architectural and interior design consultancy services from the LBMCL and to make payments for same and to enter into agreements with that institution.
Following this, Minister of Finance, Basil Rajapaksa in his observation dated October 10, 2021, proposed to carry out this modernization and renovation under the labour contribution of the Sri Lanka Navy (SLN) while directing to obtain consultancy services and to procure the items directly from LBMCL without calling for tenders.
At the Cabinet meeting held on October 18, 2021, the Cabinet granted approval to the proposals of the Memorandum dated September 27, 2021. It further states, ‘After discussions it was decided to recommend to the cabinet to grant approval to the proposals in the Cabinet Memorandum. This Memorandum was considered along with the observations of the Minister of Finance’.
It is alleged that the renovation and modernisation cost the national coffers an astonishing Rs.800 million. In 2022/ 2023, the then NPP MP, Anura Kumara Dissanayake too revealed details of this massive allocation of funds in Parliament.
Hence, this newspaper submitted an application to the Information Officer of the LBMCL on January 31, 2023, requesting to reveal details such as, whether they entered into an agreement with the Prime Minister’s Office/ Finance Ministry, when the agreement was signed, whether they provided architectural and interior consultancy services, whether they have in-house interior designers and architects, whether new additions were made to the old structure at Wijerama Mawatha, if so what are the new additions, whether a swimming pool was constructed, whether they exported all these materials or purchased from the local market, if purchased from the local market how much they earned as the profit and the total cost paid to LBMCL for this project for the renovation and modernization of the official residence of Mahinda Rajapaksa- the Prime Minister/ Fifth Executive President.
Information of a sensitive nature
However, the Information Officer- the Acting General Manager Dimuthu Vithanage of the Public Authority on February 6, 2023 rejected to release the requested information to this newspaper stating that he is not in a position to provide requested details due to security concerns and sensitive nature of information of an executive mansion’.
He further requested this newspaper to obtain information in this regard from Harsha Wijewardena, the Additional Secretary of the Prime Minister’s Office.
An appeal was then made to the LBMCL Chairman Malith Perera on February 24, 2023, which went unanswered.
On February 6, 2023, an application under the RTI Act was forwarded to the Information Officer, Senior Assistant Secretary (Admin II) of the Prime Minister’s Office, D. Mashanka H. Liyanage requesting for the same details. But this request too was rejected stating that the information is not in their possession, custody or control since the Official Residence of the retired Fifth Executive President is not owned or maintained by the Prime Minister’s Office and requested this newspaper to make an appeal if needed to the Designated Officer Harsha Wijewardana- the Additional Secretary (Admin) of the Prime Minister’s Office.
When an appeal was made to Harsha Wijewardana on February 24, 2023, by letter dated March 15, 2023, he too refused to provide information.
Navy maintains silence
Meanwhile this newspaper contacted Media Spokesman of Sri Lanka Navy Captain Wickremasuriya and Deputy Director Legal Captain Asanka Karunaratne to find out whether their staffers were assigned for this project. Both Wickremasuriya and Karunaratne wanted this newspaper to send an application under RTI to furnish the details. Although an application was submitted to obtain these information on July 24, 2023, the requested details were not provided.
Although the Acting General M, LBMCL, Dimuthu Vithanage declined to provide information, a senior officer, speaking on strict condition of anonymity, confirmed that the contract to supply building materials for the said renovation and modernisation project was given to LBMCL, but said that they never exported any of these required materials, but made the purchases from the local market.
“It was during the Building Materials Corporation time that many building materials were exported. Now we are purchasing these items from the exporters, keep a profit and re-sell them to our customers. Had the government called tenders, these items could have been purchased for a lesser price,” sources added.
Asked whether LBMCL provides architectural and interior designing consultancy services, the sources said that they do not, but can obtain the service from outside.
“Had the government made the purchases directly, without obtaining from exporters, they could have saved millions of tax payers’ money. It is the same with the architectural and interior designing consultancy services. We do not have qualified officers in these areas to provide such consultancy services. As and when if such a request is made, we obtain that service from outside keeping a profit to the institution,” the Senior Official said.
He further said that the allocation of such a large amount of funds during the height of Corona was unacceptable.
“Although, Rajapaksa has stated that the construction work has to be expedite to provide necessary space for official duties performed by the Prime Minister and official functions such as diplomatic meetings, he was given the Temple Trees to conduct all his official duties. This is how the Rajapaksa’s spent tax payers’ hard earned money to live in luxury,” sources said.
Be that as it may, the Decision of the RTI Commission delivered on August 2, 2024, by Chairman, Justice (Rtd) Upaly Abeyrathne, Commissioners Kishali Pinto Jayawardena (Attorney-at-Law), Jagath Liyana Arachchi (Attorney-at-Law) and A.M. Nahiya, states: ‘We are cognizant that the right of access to information which the Appellant claims, arises under and in terms of Article 14A of the Constitution as provided by law through the several provisions of the Right to Information Act No: 12 of 2016, which emphasises the need to foster a culture of transparency and accountability in Public Authorities. Article 14A links the right of access to information to the important aspect of being information that is required for the exercise of protection of a citizen’s right. Section 5 (1) outlines the grounds under which information may be refused. The Information Officer must also take into account under Section 5(4) which states that ‘a request for information shall not be refused where the public interest in disclosing the information outweighs the harm that would result from its disclosure.
‘Section 32 (4) of the RTI Act stipulates that the Public Authority must discharge the burden of proof to establish that it has acted in compliance with the Act in processing a request.
‘In the implementation of this Act, it is the bounden duty of the Public Authorities to follow the procedures laid down in the RTI Act to the letter, particularly as close to seven years have now passed since its enactment. In particular, the refusal to release information by a Public Authority must be in terms of the several exceptions detailed in Section 5(1) of the RTI Act. However, the response of the Public Authority dated February 6, 2023, does not demonstrate such adherence to the provisions of Section 5(1), instead citing sensitive concerns of information of an executive mansion which has no relationship to any of the exceptions detailed therein.
‘This is in violation of Regulation No: 9 of Regulation promulgated under the RTI Act No: 12 of 2016 (Gazette No: 2004/66, 03-02-2017) which imposes a duty upon the Information Officer not only to specify the exact clause in Section 5 that is being relied on to refuse the information but also give detailed reasons for rejecting the request.
‘The items of information requested relate to the manner and process by which the said renovations were carried out which speak to the transparency and accountability of the Public Authority. Moreover, it is not the stand of the Public Authority that the requisite information is not within its possession, custody and control in terms of Section 3(1) of the RTI Act. The electronic communication of the Acting General Manager dated February 6, 2023, as aforesaid, states that the Appellant may request the required information…the Additional Secretary of the Prime Minister’s Office. However, such a forwarding can only be done when the requested information is not in the possession custody and control of the Public Authority (vide Regulation 04, sub-section 06 promulgated under the RTI Act No: 12 of 2016 (Gazette No: 2004/66, February 3, 2017)
‘No elucidation of these several points have been made by the Public Authority in oral hearings before us and written submissions have not been filed in regard to its position on this question.
‘Indeed, we note that some of the information asked relates to basic information that the Public Authority should have been able to answer without demur, as exemplified by item No: 1 which simply asks the Public Authority to confirm if such modernizations had been carried out through an agreement reached between the Public Authority and the Office of the Prime Minister/ Finance Ministry
‘The said information relates to the expenditure of public funds which relates to the public interest prescribed in Section 5(4) of the RTI Act which this Commission is bound to take into consideration when exercising its appellate powers under Section 32.
‘Moreover, the appeal made by the Appellant to the Head of the Public Authority (in the absence of the Public Authority indicating as to who the Designated Officer is, in the alternative) dated February 24, 2023, has gone unanswered. This is a clear violation of Section 31(2) and (3) pertaining to the acknowledgement of an appeal and substantive thereto ‘We draw the attention of the Public Authority of Section 26 of the RTI Act which imposes a duty to display details of the Information Officer and the Designated Officer on its website as well as in its physical premises.
‘These imperative duties under and in terms of the RTI Act and its consequent Regulations are prescribed in order to ensure that Public Authorities demonstrates its strict adherence to the statutory process. We have taken into account, the submissions made by both parties at oral hearings of this appeal. We are of the view that the Public Authority has satisfactorily discharged its burden to establish that it acted ‘in compliance’ with the Act, in processing this information request in terms of Section 32(4) of the Act.
‘Also we are mindful of the letter dated August 2, 2024 addressed to the Director General of the RTI Commission by D.P. Withanage, Acting GM, Lanka Building Materials Corporation. By the said letter Vithanage has requested the Commission as follows; (we quote) ‘We seek Hon. Commission to hold in abeyance the order of the Commission due to be delivered today, since we hope to provide the requested information as much as possible, as per the legal advice obtained by this Public Authority.
‘We note that the Commission is not in a position to postpone the date of delivery of order due to be delivered today at this juncture.
‘In the foregoing, we decide that the Public Authority should release the said information requested by the Appellant before October 15, 2024, with copies to the Commission.
‘The Commission further decides that, if the Public Authority fails to comply with the said decision of the Commission before the said date, the Information Officer and the Public Authority shall be prosecuted before the relevant Magistrate Court under Section 39, of the Right to Information Act No; 12 0f 2016’.