Focus on Rights

Damaging the spirit of a country
Countless 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.

Concerns with 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 problem.

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.

More obvious 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.

Apart from 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.

But whether 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.

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