Kishali Pinto-Jayawardena, Attorney-at-Law & Sunday Times Columnist, and Jayantha de Almeida Guneratne, President’s Counsel, Visiting Lecturer, Faculty of Law, University of Colombo, Sri Lanka
A recent news story in the Sri Lankan newspapers was to the effect that the Bribery and Corruption Commission had been successful in its prosecution of a police sergeant who had solicited and accepted a bribe of 6000 rupees (approximately USD 55) from a bootlegger in exchange for promising not to haul him up before the law.
This is a familiar and typical example of a sprat being caught by the commission while the actual crooks escape unscathed. The Colombo High Court reportedly sentenced the police sergeant to four years’ rigorous imprisonment.
The ambit of the bribery law
From its inception, the Sri Lankan commission has manifested a most singular dysfunction between the grandiloquent objectives with which it was established and its actual practical achievements. The parliament voted unanimously to pass Act No. 19 of 1994, which established it. The act contemplates a commission of three members, two of whom must be retired judges of the Supreme Court and Court of Appeal while the other has to be an individual with wide experience relating to the investigation of crime, and in law enforcement. Their appointment was to be by the non-partisan Constitutional Council; however, since the council was not operative at the time that the first appointments were made–or indeed for seven years thereafter–appointments during this period were made by the president. Subsequent to 2001 and the passing of the 17th Amendment to the Constitution, members of the Bribery and Corruption Commission were nominated by the Constitutional Council and appointed by the president. However with the 17th Amendment being rendered non-functional from 2005, the president will now once again exercise an unfettered power of appointment.
The commissioners are given security of tenure, their removal being akin to the removal of judges of the higher judiciary. The commission is given the primary power to investigate allegations of offences committed under the Bribery Act or the Declaration of Assets and Liabilities Law, No. 1 of 1975 and to direct the institution of proceedings against such person for such offence in the appropriate court.
The authority of the commission may be invoked by any individual writing to the commission as set out in section 4 of the act. Section 5 stipulates the considerable powers bequeathed to the commission upon the conducting of an investigation as mandated by the act. Where an offence is disclosed, the commission (as per section 11) shall direct its director general to institute criminal proceedings against such person in the appropriate court. Indictment under the hand of the director general is receivable in the High Court.
A peculiar feature of the Bribery and Corruption Commission Act is the duty to maintain secrecy imposed upon the members, director general and every officer or servant of the commission (section 17). Every person subject to the secrecy clause must sign a declaration that he or she will not disclose any information received by him or her, or coming to his or her knowledge in the exercise and discharge of his or her powers and functions under the act, except for the purpose of giving effect to its provisions. Any individual who violates the secrecy clause is liable under section 22, on conviction after summary trial, to imprisonment for a term not exceeding five years and/or to a fine not exceeding a hundred thousand rupees.
Actual performance of the commission
The record of the Bribery and Corruption Commission has not been impressive. In recent years, we have seen the extreme politicisation of the commission and its activities, where its public impact is limited to politicians rushing to it to highlight allegations against opposing party rankers.
Inquiries held by the commission into activities of several front rankers of the previous government during the early years of its functioning, including of a former United National Party (UNP) minister, were conducted in a manner that appeared to be perfectly acceptable to the ruling People’s Alliance. It was only some three years later, when personal differences of opinion erupted between the commissioners and its then-director general that the then-government opted to alienate itself from the commissioners. This saw an about turn in political alignments with the UNP opposition taking on the role of defender of the commissioners amidst a furious public exchange of correspondence between the leader of the opposition and President Chandrika Kumaratunge.
The tarnishing of the commission’s image continued, culminating in a resolution being brought against its key officers, its director general being moved out to the justice ministry, and the functioning of the commission itself being suspended for well over a year. While public confidence in the commission hit zero level, Parliamentary Select Committee inquiries into allegations of “misconduct and/or incapacity” of the chairman and another commissioner dragged on painfully, with the commissioners’ term of office expiring during this time.
Since then, the commission has not fared better. A continuing tussle over the removal of one (part time) director general and the appointment of another to the Permanent Commission to Investigate Allegations of Bribery and Corruption again brought into public focus fundamental defects in the law under which the country’s premier graft-fighting body functions. After 2003, the failure to fill a vacancy caused by the death of a sitting commissioner meant that the commission was virtually inoperative. Its success in curbing graft in the Sri Lanka has since been negligible, and the success rate of the commission in prosecutions for bribery and corruption in the magistrate’s courts has been zero.
Investigative and legal deficiencies
The Sri Lankan commission lacks an independent policing arm, unlike counterparts in Singapore and Hong Kong. Instead it is able only to draw on serving police officers for its investigations. They are under the Inspector General of Police and are liable to transfer or disciplinary action at any time. This reflects badly on the capacity of the commission to govern its own investigations, as was apparent in 1997, when a substantial number of investigation officers were transferred out, crippling the commission’s functions. There is also a strong nexus between organised corruption and members of the police force. And there is the commission’s lack of financial independence, as it is dependent upon the treasury, resulting in indirect control of the commission by the executive.
The body complains that under section 4 of the act it cannot investigate on its own initiative. Because of this it has disallowed itself a proactive role in the investigation of corruption and bribery. Repeated media exposes of massive corruption scandals go disregarded by the commission on the basis that it is not able to investigate a complaint on its own initiative. It has also lacked the initiative to push for an amendment to the act that would bestow explicit powers to engage in investigations proactively.
Activists have recommended this and a number of other changes to the law so that the decision-making processes of the commission are transparent, to ensure that if any complainant requests the reasons for a decision, it can and must be given. The commission should also be empowered to exercise its powers in respect of election-related corruption, matters arising out of audits, cabinet decisions, public appointments and corruption in judicial administration. Other recommendations relate to the opening up of the process for appointments to the commission, (without emphasis being necessarily on retired judges), the authorising of an independent investigation unit to the body, and the ensuring of some degree of financial independence.
There is a further issue that concerns clarification of the role of the commission’s director general. The 1994 Act provides in section 16 for a director general to “assist the Commission in the discharge of the functions assigned to the Commission”. The director general is appointed by the president, without any minimum criteria for appointment save only that it should be done in consultation with the members of the commission. Though a laborious procedure is prescribed for removal of the commissioners (akin to the procedure for removal of judges of the superior courts), provisions governing the removal of the director general lack very basic safeguards. The framers of the law probably reasoned at that time that the director general’s security of tenure need not be guaranteed to the same extent as the commissioners. However, this has been proved to be a grave defect in the law, as we have seen in disputes between the commissioners and the director general in the past. Amendment of section 16 could bring about a more rational balance between the commission and the office of its director general by providing that the appointment of the latter should be on defined criteria and removal should be subject to statutory safeguards.
It is pertinent to examine whether the 1994 Act situates the director general in a position inferior to the former bribery commissioner under the old Bribery Act, reducing the post to nothing more than that of an investigating officer. It is the commission itself that is empowered to enter into investigations and the commission could, in fact, direct any officer other than the director general to look into a particular case. The director general institutes criminal proceedings against individuals, but only upon direction of the commission. The director general therefore has very limited capacity for independent action. In fact, the final draft of the law that came as a bill before parliament referred to the post as merely director. The more grandiloquent phrasing in the act obviously emerged through the parliamentary debates and amendment process.
The commission should be overseen by an independent body in a manner similar to the Independent Commission Against Corruption (ICAC) in Hong Kong. These ICAC advisory committees which are formed of citizens and professionals include a general committee which oversees the overall direction of the ICAC and advises on policy matters, an operations review committee that examines the investigative work of the ICAC, a corruption prevention advisory committee that looks at corruption prevention studies and a citizens’ advisory committee that educates the public and enlists their support. An internal investigation and monitoring group handles all complaints against ICAC staff, which are then reported to the operations review committee. Further buttressing the internal integrity of the ICAC, an independent Complaints Committee chaired by an executive council member monitors and reviews all complaints against the ICAC.
The Sri Lankan act should be overhauled to provide for a measure of independent supervision, given severe internal controversies that were evidenced during the tenure of previous commissioners, including an instance in 2002 where a private plaint was filed against one of the commissioners for disclosing to the then-president information on pending investigations regarding a dissident politician, in violation of the secrecy oath.
Under article 2 of the International Covenant on Civil and Political Rights, states parties are under an obligation to put into effect legislative, judicial and administrative measures that ensure the covenant’s implementation. This obligation is of a practical nature. It means that institutions are created and provided with resources for the implementation of the rights as enshrined in the covenant. Sri Lanka is a signatory to the covenant, but implementation as per article 2 is seriously hampered by the institutional defects of the Bribery and Corruption Commission. While this has not resulted in a direct violation of Sri Lanka’s constitution (except the general rule of non arbitrariness that is infringed by some of the defects stated above), it is persuasively evident that the non-effectiveness of Act No. 19, 1994 means that international obligations under the covenant are being continuously violated.
