Putting Bribery and Corruption Commission on right track
Eight years after the Permanent Commission on Bribery and Corruption was set up in Sri Lanka, it is an irony that passes all comprehension that the most persistent complaint of the Commissioners continues to centre on a lack of experienced and qualified staff. The 2000 annual report of the Commission, which was released early this month states that out of a total of fifty nine officers attached to the Commission (which is about 90% of the approved cadre), thirty eight officers are 'total strangers' to the field of investigation in bribery and corruption. Astonishingly therefore, only forty officers can actually be employed for investigation while the rest are engaged in either guard duty or administration chores. Not surprisingly, this has resulted in an over burdening of the cases entrusted to each officer and a consequent decline in the efficacy of the work of the Commission.

It is clear, however, that the overhauling of the Commission, if it is actually to make an impact on an acknowlegedly corrupt system in this country, involves far more than the assigning of qualified staff. In recent years, we have seen the extreme politicisation of the Commission and its activities in a manner that almost brings to despair, the hope that Sri Lanka would have a Bribery and Corruption Commission worthy of the high expectations with which it was set up in 1994. Now, we have a situation where the public impact of the Commission is limited to instances of politicians rushing to the Commission to highlight allegations against opposing party rankers and very little beyond that. Not a very healthy situation for what once promised to be the country's premier graft fighting body.

The preceding years had, of course, not been particularly happy for the growth of an efficacious Commission. The setting up of the Commission in 1994 was traceable back to the earnest commitment in the manifesto of the People's Alliance to rid the country of the damning scourge of bribery and corruption. To quote "…….it is evident that the office of the Bribery Commissioner, as constituted at present, is unacceptably vulnerable to pressures, both covert and overt, and indeed to victimisation at the hands of the incumbent administration. It is for this reason that the PA advocates that the power of appointment of the members of the Permanent Commission should reside not in the government of the day but in a Constitutional Council, the composition of which guarantees its non partisan nature". The law bringing the Commission into being was thereafter passed by consensual agreement in Parliament.

Defying the need to carry on a consensual spirit in the functioning of the Commission however, the first appointments of the Commission in 1994 were by Presidential fiat only, effectively putting into motion a disastrous trend of politicization of the Commission. Subsequent events were not all that reassuring either. Inquiries held by the Commission into activities of several frontrankers of the previous government, including a former 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 Director General Nelum Gamage, that the Government opted to alienate itself from the Commissioners. This saw an about turn in political alignments with the UNP taking on the role of defender of the Commissioners amidst a publicly furious correspondence between the Leader of the Opposition and President Kumaratunga.

The year 1999 accordingly saw a tarnished Commission whose five years in office had been plagued by vicious infighting, 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 suspended for well over a year. While public confidence in the Commission hit zero level, the Parliamentary Select Committee process inquiring into allegations of "misconduct and/or incapacity" against its Chairman T.A.D.S. Wijesundera and member Rudra Rajasingham dragged itself on to its painful and inevitably politicized end.

Writing at that time on the need to rebuild public faith in the institution of the Permanent Commission, this column pointed out that certain vital changes are needed both in the substance and the working of the Commission law. Importantly, it was pointed out that the process of removal of Commissioners should be re scrutinized, preferably taken out of the hands of Parliament and entrusted to an independent tribunal which has both the time and the capacity to come to legal findings of " misbehavior and/or incapacity" against impugned Commissioners. In the meantime, the law should also make provision for an interim body that could deal into pending complaints during this time.

Events that have occurred since then only reinforce the need for amendments of this nature. 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. At that time, the outgoing Director General charged that his removal was due to his "determination to go ahead with investigations when evidence was available and reluctance to do so when there was no evidence." His successor retorted that he would continue with all investigations presently before the Commission and denied that his appointment was prompted by "political reasons." The questions however remained unanswered. What are the actual achievements of the Commission in the convictions that it has brought about, notwithstanding part time or full time Directors General? Its annual reports may give statistics of the number of cases prosecuted or investigated but that is not the question in issue. Has the Commission proved to be a significant deterrent force in curbing graft in the country?

At this moment in time, we have future appointments of the Bribery Commission thankfully being handed over to the Constitutional Council, though the process of removal is still problematic. However, other deficiencies in the functioning of the Commission stand in need of immediate correction. The secrecy clause that is meant to prohibit personnel of the Commission from divulging details of confidential proceedings has proved to be obviously ineffective.

The clause should be tightened. Anonymous petitions against persons should be treated with great caution and stiffer punishments prescribed for persons making false allegations. Specific legal provision meanwhile should be made to allow persons appearing before the Commission to have legal representation in the face of allegations. But this is not permitted as a matter of course. Other functional problems remain. The Commission should be given an independent investigative unit, like anti corruption units in Hong Kong and Singapore instead of relying on police officers assigned from the regular police force. Likewise, the Commission ought to exclusively employ its own team of legal officers. Retention of legal personnel from the Attorney General's Department which is the main state law arm, sits basically at odds with the goal of the Commission which should be to expose corruption within the Government ranks as well as without.

In the year 2002, one still hopes that effective changes to the existing law and practice would minimise the trauma that the institution of the Permanent Commission on Bribery and Corruption has been subjected to in the recent past. Leaving personalities aside, this should be the primary task of our policy makers if we are to rescue the Permanent Commission from the morass of inefficiency that it is now reduced to.

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