Focus on Rights - Demanding powerful symbols of integrity in public life

Some significant developments this week compel me to revisit the notion of what is actually meant by combating corruption in all its forms and at all its levels.

Firstly on Thursday, a Supreme Court Bench headed by Chief Justice SN Silva issued an interim order restraining former Chief of Defence Staff and Navy Commander Daya Sandagiri from functioning as the Deputy Secretary to the Ministry of Defence, Law and Order.

The interim order was issued upon a petition filed by a "typist specialising in legal work", (undoubtedly a public-spirited typist of the highest conscience notwithstanding his puzzlingly sudden emergence into the public forum). The Petitioner had called for the Court to restrain the appointment whilst a Presidential Commission was probing Admiral Sandagiri's role in an allegedly corrupt purchase of military equipment. The Order of Court was issued upon the judges proclaiming that newspaper allegations about the deal were "serious and not merely speculative."

Secondly, newspaper reports on the arrest of the Officer in Charge of the Wellawatte police Station for general bribery and corruption charges were also prominent. The arrest was in stark contrast to the minnows normally caught in the police service.

These discussions are also framed within a focus on seminar discussions hosted this week by the UNDP for High Court judges wherein amidst other clarion calls for action, it had been pointed out that if judges are vigilant, bribery and corruption in court houses could be minimised.

All these reports beg some interesting questions. What is exactly is meant by corruption? Does it involve only the mundane transfer of money whether in billions as signified in arms purchases or in relatively smaller amounts from ordinary citizens? What about political corruption as signified by public officers at the highest levels, including judicial officers, (and not only court staff) being politically influenced into delivering a decision in a particular manner or refraining from so doing? Would this amount to corruption? And what would be the remedy when consistent evidence of such judicial corruption is found? To what forum should public spirited petitioners go in such instances?

Section 70 of the Bribery Act, No 11 of 1954 as amended particularly by the 1994 legislative amendment, (to the Bribery Act of 1954) certainly encompasses an extravagant definition of what is meant by corruption.

Thus, any public servant who acts with the requisite intent to cause any wrongful or unlawful benefit or favour or loss (and so on) to the Government or any person is brought within its ambit. Liability arises upon such intent being manifested in conjunction with a number of consequent actions.

These include the doing or refraining from doing of any act which that public servant is empowered to do by virtue of his or her office and direct or indirect inducement in that same context. The section catches up the using of information obtained in that regard and even the pure participation in the making of a decision by virtue of the office as public servant. In all it was an ambitious if not fairly imaginative conceptualization of an efficient strategy to tackle graft.

The background in which this Act was passed in 1994, along with the bringing in of a robustly conceived Bribery and Corruption Commission through a separate act, is now common knowledge. Indeed, there are lugubrious parallels with this and the 17th Amendment to the Constitution. Both were passed with rare parliamentary unanimity. Yet, both had signally failed in their objectives within a few years of their coming into being.

The well documented fate that befell the Bribery and Corruption Commission during the first decade of its existence needs no repetition here. The infighting within the Commission, its very severe politicisation and its inactivity for a number of very disturbing years was part of this problem. Thankfully, the present Commissioners, (approved and nominated by the Constitutional Council at a time when there was a semblance of constitutional order), appear to have freed themselves to some extent from this dark legacy.

Doubtless though, we have a long way to go to achieve the heights of anti corruption bodies elsewhere, as for example, Hong Kong's Independent Commission Against Corruption (ICAC). Growing public opinion (including mass student protests over the fleeing of a prominent police officer after taking huge bribes) was the primary reason why the earlier endemic culture of corruption in the territory changed. The ICAC was set up under Ordinance in 1974. A striking comment made at that time by one of its originators was that " To combat corruption, good laws and good organisation are essential but I put my trust principally in the services of sound men and women...."

The functioning of the ICAC since the years that it has been established has been remarkable. In a Transparency International's Corruption Perception Index survey released recently, Hong Kong was ranked the 14th least corrupt place amongst 102 places polled, and the second cleanest in Asia. This has had obvious results in so far as development and international investors are concerned.

But to return to Sri Lanka's considerably sadder reality, let us look at how much the current malfunctioning of the judicial system itself has contributed to this problem. Corruption in these instances involves a range of documented actions, from the exercise of undue judicial influence in compelling lawyers and clients to settle cases (even those of the most grievous torture) against their will and hearing cases where a judge himself is cited as a respondent (despite protests). It also includes judicial insistence on particular matters being listed before that particular judge with the preconceived objective of granting relief or dismissing the petition.

Undoubtedly these are all actions caught up within the expanded definition of corruption as discussed above, particularly in regard to the integrity of judicial proceedings involving access to justice, fairness of judicial decisions/outcomes and impunity from judicial action for certain individuals.

Within the general context of judicial integrity, we have been unable to devise good systems of judicial discipline of judges, whether of the subordinate courts or at the higher courts level. The political nature of the impeachment process applicable to judges of the higher courts is of historical record (as evidenced both by the attempted impeachment of former Chief Justice Neville Samarakoon as well as the two lapsed impeachment motions against the current Chief Justice SN Silva). These instances show us the deplorable consequences of subjecting judicial accountability to parliamentary supervision. But then again, we have been quite unable to break free from this stranglehold of the politicised remedy of impeachment and initiate effective and fairer scrutiny of judicial conduct.

Even the limited efforts that were legislatively brought in by the 17th Amendment to restrain political appointments of public officers involving independent supervision by the Constitutional Council are now set at naught. And the very functioning of the Judicial Service Commission in whose hands is vested the power of disciplining minor judges have been affected by direct Presidential appointments being made to this Commission, among others, despite the CC not being in existence. Was this action on the part of the President not evidence of political corruption at the highest executive levels?

As has been remarked relevantly by the Asian Human Rights Commission recently, "the direct selections by the executive is a prescription for undue influence and corruption in public institutions. For any system to function rationally, its institutions must be protected from undue political interference through the implementation of objective criteria."

However, here again, where is one to go to when the notion of "blanket immunity" protects such Presidential appointments? When the Executive President is corrupt, where is the remedy? In this case, this is alleged corruption of constitutional governance. In so far as former President Chandrika Kumarantunge was concerned, there were also allegations of direct financial corruption made against her whilst in office where again, immunity protected her. There is no perceptible effort made to address these issues even after she was reluctantly compelled to leave office.

And this brings us to the core issue of these discussions; while restraints imposed on senior military officers by stern court orders are well and good, the problem is wider than that and the questions are more profound than that. We need to acknowledge this fact and bring ourselves to discuss as to how best the pervasive scourge of corruption in public life could be dealt with.

What Sri Lanka needs are not seminars and conferences on combating corruption replete with the usual pontifications by Ministers and public officers. What we need are powerful symbols of integrity in public life and a healthy public demand for effective systems of accountability at all levels, including the judiciary. If needs be, the Constitution and subordinate laws should be changed for that purpose. Above all, we need wholesale respect shown for constitutional governance at all political levels, starting from the Presidency and mechanisms to impose accountability in its default.

In the alternative, restraint orders issued against service personnel and Presidential Commissions investigating corrupt arms deals will accomplish only very little.