Damaging the spirit of a country
extraordinary paradoxes with the manner in which Rule of Law functions
in this country, plague us. Of these, the saddest are those that
point to the mal functioning of hallowed entities meant to protect
the people, like the judiciary and statutory and/or constitutional
bodies set up to monitor the proper working of the system. When
peoples' faith in these entities are diminished, the damage done
to the collective spirit of a country is irreparable.
With all the
many things so seriously wrong in the governing of this country,
it is perhaps unsurprising that the Bribery and Corruption Commission
remains one of the most striking examples of this malfunctioning.
Astonishingly, a recent report of a monitoring body on corruption
has revealed that the success rate of the Commission in prosecutions
for bribery and corruption in the Magistrate's Courts, has been
zero. This is an achievement undoubtedly unparalleled for a country
professing to be a functioning democracy.
the 1994 law under which the Commission has been set up as well
as problems in its implementation, were highlighted recently by
the Sri Lanka office of Transparency International. These provide
a basic framework for the Government and policy makers to initiate
serious discussions on the manner in which the Commission ought
to be rejuvenated.
Many of the
concerns so highlighted are not new. On the contrary, they have
been manifest for a number of years despite a deafening silence
on the part of this country's successive political leaders. A tightly
drawn appointments process of Commissioners (now resulting in a
stalemate situation with the Commission being unable to find a replacement
for a vacancy on the body) remains one of the most visible problems.
However, concerns besetting what should have been this country's
premier graft fighting body are much wider than this.
In the first
instance, a major structural problem relates to the independence
of the Commission from government and state structures. This translates
itself into negative impact in many ways.
First and foremost,
the Commission continues to lack an independent police force unlike
anti-corruption units in Singapore and Hong Kong. Instead it is
able only to draw on serving police officers for its investigations
who are under the IGP and liable to transfer or disciplinary action
at any time.
On the one
hand, this reflects badly on the capacity of the Commission to govern
its own investigations, as was apparent in 1997 for example, when
a substantial number was transferred out of the Commission, crippling
its functions. On the other hand, the nexus between organised corruption
and members of the police force in this country is not something
that needs to be peculiarly stressed, making this a most serious
To this is
added the lack of financial independence, manifested by the Commission
being dependent upon the Treasury, resulting in the indirect control
of the Commission by the executive.
As far as the
responsibilities of the Commission itself are concerned, the lack
of transparent and accountable decision-making processes has been
stressed. In addition, it is pointed out that the body has disallowed
a proactive role in the investigation of corruption and bribery.
Consequently, repeated exposes in the media regarding massive corruption
scandals in Sri Lanka go disregarded by the Commission on the basis
that it is not able to investigate a complaint on its own initiative.
A number of
changes are recommended to the Bribery and Corruption Law, including
interestingly, explicit conferment of powers to engage in suo moto
investigations. Decision-making process of the Commission should
be transparent and if any complainant requests for the reasons for
a decision, reasons must be given. The Commission should also be
empowered to exercise its powers in respect of elections related
corruption, matters arising out of audits, cabinet decisions and
public appointments and corruption in judicial administration.
recommendations relate to the opening up of the appointments process
to the Commission, (without emphasis being necessarily on retired
judges), authorising an independent investigation unit to the body
and ensuring some degree of financial independence.
these recommendations put forward by Transparency International,
there is a further issue that concerns clarification of the role
of its Director General. The 1994 Act provides for a Director General
to "assist the Commission in the discharge of the functions
assigned to the Commission." Though a laborious procedure is
prescribed for removal of the Commissioners (akin, in fact, to the
procedure for removal of judges of the superior courts), provisions
governing the removal of the Director General are minus very basic
safeguards. It is imperative therefore that the 1994 Act be amended
to bring about a more rational balance between the Commission and
the office of its Director General.
all these amendments would result in a Commission that sets a strong
moral tone in tackling bribery and corruption in Sri Lanka is a
far more complex question. For that, we need men and women of integrity
and tremendous courage serving on the Commission. In the alternative,
it would be better if the 1994 Act is repealed once and for all,
for our own collective sanity.