Focus on Rights

Amend the Bribery and Corruption Commission Act now
This column, last week, analysed the structure of the independent Commission Against Corruption (ICAC) in Hong Kong and contrasted its vibrant functioning with the dismal performance of its Sri Lankan counter part. Piquantly, President Chandrika Kumaratunga has now seen fit to reprimand the United National Front government regarding the in-operative nature of Sri Lanka's Bribery and Corruption Commission, attributing the passivity of the administration to the corruption prevalent in government ranks.

One could descend to vulgar commonalities and call this a classic instance of the pot calling the kettle black, given that the Kumaratunga administration itself was not exactly lily white during seven years or so in power. However, apart from trading accusations with regard to which regime is the more corrupt, (an exercise as terribly mind boggling as it is futile), it is imperative that the office of the President as well as the office of the Prime Minister take immediate steps to amend the Bribery and Corruption Commission Act, in order to address fundamental inadequacies in the law itself.

Some of these inadequacies were examined in last week's column. With the hindsight that is unfortunately ours in the context of Sri Lanka's Commission being wracked by internal disputes during its past nine years of existence whilst being absolutely unable to perform its stipulated tasks, particular amendments to Act No 19 of 1994 have become very clear.

Firstly, the Act should be amended in a manner that broad bases its criteria for appointment of its Commissioners. This is now an accepted necessity. Currently, it prescribes a Commission of three members, two of whom are mandated to 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 law enforcement.

Its powers need to be tightened in respect of an independent police force under its command, instead of being compelled to draw on serving police officers, (with all the attendant complications), for its investigations. As the Colombo office of Transparency International detailed further in one of its recent reports, the independence of the Commission should be ensured by it not being made dependent upon the Treasury for its finances.

Meanwhile, the body has consistently disallowed a proactive role in its investigations. Rampant bribery and corruption in Sri Lanka is disregarded by the Commission on the reasoning that it is not able to investigate a complaint on its own initiative given that Section 4 of the Act states only that the authority of the Commission may be invoked in writing by any individual writing to the Commission. Consequently, it is best that this Section is amended in order that the Commission is given explicit powers to engage in investigations of its own accord.

Further amendments clarifying of the role of its Director General are also necessary. Section 16 provides for a Director General to "assist the Commission in the discharge of the functions assigned to the Commission" who is appointed by the President minus any minimum criteria for appointment save only that it should be in consultation with the members of the Commission. In addition, though a laborious procedure is prescribed for removal of the Commissioners, provisions governing the removal of the Director General are minus very basic safeguards. Here again, we have seen ad nauseam instances in the past where disputes between the Director General and the Commission have crippled its functioning. These lacunae should be corrected and a more equable balance brought about between the two.

While these amendments relate to the internal functioning of the Commission, a measure of external supervision is also important. In this respect, the Commission should be overseen by independent committees like the Independent Commission Against Corruption (ICAC) in Hong Kong. In the latter case, advisory committees, (formed of citizens and professionals), oversee the overall direction of the ICAC, advises on policy matters, examines the investigative work of the ICAC, looks at corruption prevention studies, educates the public and enlists their support. An internal investigation and monitoring group handles all complaints against ICAC staff that are then reported to the operations review committee. As last week's column pointed out, an independent ICAC Complaints Committee chaired by an Executive Council member monitors and reviews all complaints against the ICAC, thus further buttressing the internal integrity of the ICAC,.

The Sri Lanka Act should be overhauled to provide for a measure of independent supervision given its severe internal controversies, including a recent instance in 2002 where a private plaint was filed against one of its Commissioners for disclosing information on pending investigations regarding a dissident politician to President Chandrika Kumaratunga in violation of the secrecy oath;

Specific legal provision should also allow persons appearing before the Commission to have legal representation in the face of allegations made currently, that this is not permitted as a matter of course. The Commission ought also to exclusively employ a 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 which, in effect, includes the Department;

Finally, should Section 5(a) of the Act be amended in order that removal of Commissioners is decided upon not by Parliament but by an independent tribunal which has the capacity to come to legal findings of " misbehavior and/or incapacity" against impugned Commissioners? Attempts to politicise removal of the Commissioners that we saw in the past may then be avoided. As a necessary corollary, the law should also make provision for an interim body to be set up that could deal into pending complaints during this time period.

These are substantive amendments that need to be made to Act No. 19 of 1994. In the alternative, (even if its year long vacancy is filled), we will continue to have a Commission that is tossed about like a football between our politicians, to their continuing and mutual advantage. Is it any wonder that despite the political colour of any government, we continue to see public funds being ripped off, vast amounts of money changing hands for political favours and financially swollen upstarts holding the system to ransom, if not the law itself? For how much longer should we tolerate these absurdities?

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