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28th June 1998

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Where issues are ignored and lessons unlearnt

By Kishali Pinto Jayawardena

For the disillusioned observer, the mounting hysteria in the current fracas revolving around the Permanent Commission to Investigate Bribery and Corruption is both nauseating and dangerous. It is nauseating for the political cum personal mudslinging that has now reached a new high, involving new players who are being defamed willy nilly. It is dangerous for the fact that like in many other instances where tempers are inflamed, crucial issues that need to be addressed are ignored and important lessons that ought to be learned go unheeded.

Consider the situation as it now stands. Two strands of opinion are being belligerently expressed, put forward by proponents of predictable political colours. On the one hand, the Government is accused of systematically and diabolically crippling the Commission, evidence of this being the continued refusal of President Chandrika Kumaratunga to appoint a third Commissioner since January 1997 (rather a specious argument, to say the least ) and the subsequent withdrawing of the body's investigating police officers and prosecuting attorneys. According to this view, it was the former Director General of the Commission, Nelum Gamage who was the thorn in the flesh of law abiding public officers intent on carrying on the task of graft fighting entrusted to them. With her removal ( promotion or demotion, take your pick) to the Ministry of Justice, things ought to have settled down, and a new Director General appointed to carry on the work. The fact that it was not so was taken as a damning indictment on the Government. Link this up to the fact that several complaints have been formally lodged with the Commission about the AirLanka privatisation and Minister Mangala Samaraweera's credit card spendings and the resolution signed by 80 PA Parliamentarians to remove Commissioners T.A.D.S. Wijesundera and Rudra Rajasingham becomes politically expedient and easily explainable. On the other hand, as the correspondence flying between the Presidential Secretariat and the Commissioners not to mention the Leader of the Opposition indicate, the grouses that the Government has against the incumbent Commissioners are many. Briefly, these range from incapacity in that the Commissioners are held accountable both for having failed to conduct a single successful prosecution for corruption since the new laws were enacted and for instituting two actions that ultimately failed. The other charges relate to misconduct in their actions in the investigation against Director General Gamage and six counts of incapacity/misconduct personally against the Commissioners. It was a Commission that the Government could not live with, the kindest words that the Chief Executive uttering being that "they were totally lethargic and not conscientious." They moreover refused to resign. For those holding the reins of governance therefore, the Commission had caught them in an intolerable situation, which they chafed at. The options were to act now to disband the body or to wait until the end of next year when the five year term of the two Commissioners expired. They chose the former and acted with impeccably bad timing, something that is now not unfamiliar.

The truth ( or the nearest thing to the truth ) lies, of course, somewhere in between these two extremes. Since mid last year, which was approximately the time when the le affaire Gamage erupted into the public domain, it is doubtful whether the distasteful drama that was played over several months left any of the chief players untainted. A jogging of our formidably short memories appear inevitable, more so as many of the statements now being made, attempt to gloss over those events. The investigations against Director General Nelum Gamage last year were based primarily on accusations concerning her husband Lal Gamage who was accused of improper conduct and abuse of his wife's position. The accusations followed the resignation of Vijaya Hettiarachchi, another senior Bribery Commission officer with a hitherto unimpeachable record of service,. Both officers Gamage and Hettiarachchi were public officers ( the former admittedly with a more chequered past than the latter) with long years of service and the resultant controversy was to trigger a sequence of events that cast the credibility of the entire Commission into severe doubt. Among the more unpalatable happenings were an arrest warrant issued against Lal Gamage by the Colombo Chief Magistrate, acting on representations made by Commission officials, a day before the Director General's writ petition against the commission for acting with malice and hostility against her was due to be heard in the Supreme Court. The warrant was later vacated by the Colombo High Court on the basis that it had been obtained by misleading facts to court, the High Court subjecting the procedures adopted by the Commission to severe criticism. Subsequently, the writ petition against the Commission was settled, with the Commission giving an undertaking to refrain from taking further steps against the Director General. It is this settlement that the Commissioners now allege that they were coerced into. It is interesting that this defence is being taken up only now, with nary a murmur of such coercion at the time the settlement was entered into. Of course, the hostility between the Attorney General's Department and the sitting Commissioners was to be manifested only later over some unwary remarks being made to the press by Commissioner Wijesundera, about offers of alternative appointments for him to resign emanating from the Department.

The question remains however whether the conduct of the Commissioners during that time in question, could be said to be above reproach? Given that cause existed for investigating the actions of the Director General and her husband, (whose case, incidentally for alleged non declaration of his age while working at a state institution, which was the prosaic level to which the allegations ultimately came down to, is still ongoing in court) the question is whether the Commission proceeded against them in a manner that did not cause suspicion on its own bona fides. As this writer pointed out at that time, this remains the crucial issue, irrespective of the personalities of the players involved. The fact remained also that both the accused were subjected to a veritable trial by the media, with detailed proceedings of what was happening within the Commission being reproduced in certain sections of the media in a most disquieting manner. This too, in the teeth of the famed secrecy clause, which ostensibly prohibits members of the Commission, from talking on official matters. This leaking out of information amounted to almost a presumption that it was stage managed in order to achieve a particular result. The Commission, meanwhile, appeared unconcerned by the whole process. This, indeed, was not the first time that details had been made public about confidential investigations carried out by the Commission. An unsavoury precursor to the Nelum Gamage controversy had been the manner in which the first Commission report against then General Manager of the Bank of Ceylon, Rohini Nanayyakkara was publicised. The case against Nanayyakkara was reiterated recently, with the now inevitable calls being made as to why no action was taken on the report, and why she was not "dealt with?"

The answer is obvious. Under the relevant law, a person can be charged for corruption only in respect of acts occurring after 1994 on the basis that a new offence can only operate for the future, though the Commission is given powers of inquiry into alleged acts of corruption that occurred prior to 1994. The conduct of the General Manager in the awarding of a tender for the supply of 25 stand alone computers to the Bank of Ceylon at a time when R. Paskaralingam was the Secretary to the Ministry of Finance and D.B.Wijetunge, the Minister of Finance was inquired into under the latter head.

The report of the Commission named her guilty of corruption in that irregular procedures had been adopted by her in cancelling an earlier tender awarded to Informatics in favour of IBM. The General Manager's responsibility was said to rest on her having veritably coerced the Board to agree to her proposal. Her actions were moreover ruled to have a chain effect in "activating the then Minister of Finance and through him, the Cabinet." This was despite evidence that the ultimate decision to cancel the tender was taken by the Cabinet, which had been influenced by representations made to the Minister of Finance by several foreign embassies, including that of the United States. The reason why no action was taken against the General Manager was therefore simple, there was no action to take. She had been specifically acquitted of bribery and the charges of corruption against her, even if prosecutable in terms of the period within which it occurred, would not have easily stood up in a court of law. Meanwhile, the publicising of the report, which in any case, were only findings of a prima facie case against her, led to an inevitable tarnishing of her reputation in a manner that did not reflect very well on the Commission itself. In retrospect, this episode could well be said to foretell an embroiling of the Commission in public controversy in a manner that was to later spell its own destruction.

Thus it is that a long and sober look should be directed at the Permanent Commission, and the law under which it functions. Important lessons remain to be learnt. The most obvious is that the 1994 laws that were drafted in a hurry contain defects that ought to be immediately remedied. First and foremost, the secrecy clause that has proved to be obviously ineffective, has to be tightened. Anonymous petitions against persons should be treated with great caution and the law should prescribe a stiffer punishment for persons making false allegations. Specific provision has to be made that persons who appear before the Commission are permitted to be represented by lawyers, the allegation being that this was a facility not extended to selected persons mandated to appear before the Commission in the past. Other functional problems remain. The Commission has to be given an independent investigative unit, like anti corruption units in Singapore and Hong Kong, instead of relying on police officers assigned from the regular police forces. Likewise, it is far better that it upgrades its own team of legal officers to handle its work. The retention of legal officers from the Attorney General's Department that is vested with the task of handling the legal responsibilities of governance, is fundamentally incompatible with the goal of the Commission which ought to be to expose corruption in the government ranks as well as in the Opposition. Above all, appointments to the Commission has to be made, not unilaterally by the President as in the present case, but by the Constitutional Council, as provided for in the law. It is well, in fact, if their removal is also entrusted to the courts rather than to Parliament.

All this predicated reform may pale into insignificance in the current trauma gripping the Commission. At present, the issues are lamentably politicised. While the manner in which the Commission has conducted itself in the past cannot be whitewashed by some for transparent political ends, the blatant partisan manner in which the Commissioners are sought to be ejected from Parliament cannot also be approved. Unenviably, we appear to be in a classic Catch 22 situation.

BJP's hundred days allay Lankan fears

Special to The Sunday Times
By, Our India Correspondent

When the BJP - led coalition assumed office in New Delhi just over a 100 days ago, Sri Lankans reacted in two different ways. While the majority Sinhalese and the government were apprehensive, the minority Tamils were elated. If the inclusion of avowedly pro-LTTE leaders and parties in the new Indian government revived the nightmare of another Indian intervention in Sri Lanka in the Sinhalese south, they triggered hopes among the Tamils of renewed Indian backing for their cause.

The Tamils had come a long way from the virulent anti Indianism they had displayed during the IPKF's presence in their midst. To them, the BJP represented a new force which they could influence. The fact that some of its allies were unabashedly like the PMK, the MDMK and George Fernandes, added to its attractiveness.

No wonder, Foreign Minister, Laksman Kadirgamar, went post haste to New Delhi to seek clarifications.

To his relief, the new men at the helm assured him that they would stand for a united Sri Lanka and would have no truck with secessionism and terrorism. Fortunately for Colombo, the pro-LTTE elements in the Indian cabinet were silent on the Tamil issue, obviously not wanting to rock the boat.

But the peace was rudely disturbed soon enough. Former High Commissioner in Colombo and now Chairman of the Foreign Affairs Cell of the BJP, Nagendra Nath Jha, came to Colombo to declare that India was working on a "concrete and easily implementable package for the solution of the ethnic conflict, which would be palatable to both the Sinhales and the Tamils." He urged the permanent merger of the North and East to form a single Tamil Homeland. This was a red rag to the Sinhalese. The government too had rejected full merger. The Big Brother's ghost had come back to haunt the isle. However, New Delhi quickly sensed danger and ticked off Mr. Jah.

But just as things seemed to be on an even keel, came Jayalalitha, with her brazen demand for Indian intervention to stop the "genocide" of the Tamils in Sri Lanka. She had made it a condition for continuing to support Mr.A. B. Vajpayee's minority government. Though this was primarily meant to put Mr. Vajpayee in an acutely embarrassing position and force him to dismiss her bete noire, Tamil Nadu Chief Minister M. Karunanidhi, alarm bells clanged in Sri Lanka.

The intelligentsia here was not convinced that Jaya's move had a very limited domestic purpose, that of getting Karunanidhi sacked. It was pointed out that in the past, the origins of India's interventionist policy lay precisely in such petty jockeying for power.

Once again, fortunately for Colombo, Mr. Vajpayee stood like a rock. Eventually, the move petered out with Jayalalitha meekly declaring that she would never support the LTTE.

On its part, Colombo supported BJP led India's bid to gate crash into the exclusive nuclear club. At the same time, it urged India and Pakistan to use the SAARC summit to talk and defuse the South Asia crisis. Both these gesture helped cement Colombo New Delhi ties.

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