Written by Tharushan Fernando
21 Aug, 2016 | 9:13 pm
A legal lacuna has arisen which obstructs certain inquiries carried out by the Auditor General. The situation has come to light with several institutions informing the Auditor General that he does not have the power to audit their institutions in line with constitutional provisions.
Legal experts say the situation has come about as a result of differences in the English and Sinhala language versions of the 19th Amendment to the constitution.
The 19th Amendment mentions Article 154 of the Constitution, which details the role of the Auditor General.
According to the English language version of the amendment, the Auditor General is empowered to audit all institutions where the state has an ownership share of 50 percent or more.
This has been correctly translated in the Tamil language version of the amendment. However, the Sinhala language version, states that the Auditor General may audit institutions where the state has an ownership share of more than 50 percent only.
Former Auditor General, S. Mayadunne, pointed out that this problem of interpretation leads to a question of implementation where a person can claim that the Auditor General does not have the power – and the easiest way to resolve this is for parliament to grant approval.
He added as per the current constitution, under Article 154/3, the Parliament can confer any duties on the Auditor General and under this provision, the power to audit specific corporations can be conferred or it can be conferred as a public right.
This lacuna in the legalese could have a detrimental effect on the audit function in certain corporations.
Adviser for Anti Corruption Front, Keerthi Tennakoon stated that this is one of the primary promises that was made by this government and the fraud and corruption that prevailed in companies under statutory bodies is very clear. And the purpose of this Act was to enable investigation of the finances of such companies.
He went on to note that there are certain provisions that should not have been made by parliament in order to correct this mistake the Anti Corruption Front and many other civil society organisations have pointed this out on several occasions.
“It is extremely unfortunate that this group has been unable as yet to correct the mistake that has arisen in the translation”, said Tennakoon.
Nevertheless, the 19th amendment also contains provisions with regard to inconsistencies in translation. But, while the Act notes that in the event of inconsistencies between the Tamil and Sinhala language versions, the Sinhala language version stands as law, it does not make any mention of the English language version.
The Auditor General noted that talks are underway with the Attorney General in order to resolve the issue in interpretation.
Senior Lawyer, Attorney-at-Law Gomin Dayasri explained that the Act which introduces the 19th amendment states that in the event of an inconsistency between the Sinhala and Tamil translations, the Sinhala version stands. He stated that the President himself has said that the Sinhala version itself is a translation and there is no mention that the English version of the act applies to either the Sinhala or Tamil versions.
He called on the Auditor General not to raise unnecessary issues when both the English and Tamil versions have directly and practically detailed his role. I also wish to remind him that the cornerstone of interpretation is to think intelligently and fruitfully and not to aggravate any flaws through artificial interpretation, he said.
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