Sunday Times 2
Presidential commission and criminal investigations
It’s not easy to understand white collar crimes. The treasury bond issue, is not easily understood by ordinary citizens. Yet, the ordinary citizens have taken a keen interest in the treasury bond issue. It took centre stage in politics and the people followed the commission’s proceedings closely. Now the commission’s report is out and a summary of its findings and recommendations was made public by the President and it was stated in his public statement that the report was sent to the attorney general to take action on the commission’s recommendations.
The commission was not a criminal investigation. Pursuance of an investigation by a presidential commission and a criminal investigation has a profound effect on what ultimately happens. It comes down to the powers – or lack thereof – available in each process. This situation was explained clearly by the President’s statement. The commission can only identify the wrongdoers. That done, the commission’s mandate ends there. It has no power to punish the wrong doers. That process is left to the criminal justice system.
As far as the powers of investigation are concerned, the commission has the most power, because there the investigators can force anyone to answer questions, explain their action and produce any document. This was clearly seen during the proceedings of the presidential commission. Those powers are not available to prosecutors before the court of law, which make criminal cases much harder to prove. Defendants can refuse to testify and can’t be compelled to answer questions. By law the accused are provided certain rights and protection. The witnesses have to stand the test of cross examination by the defence.
To punish the wrongdoers the state needs to institute legal action against the wrongdoers identified by the commission. The state legal and prosecuting officers have to go before court and prove the accused persons guilty. To be successful, criminal cases must be proved beyond reasonable doubt while at the commission, the cases must only achieve reasonable probability that the crime has occurred.
The attention is now focused on the attorney general’s department. The attorney general’s role is crucial for successful prosecution and conviction of the wrongdoers and recovery of undue profit earned. The state prosecutors are supposed to prosecute the cases neutrally and dispassionately. The state needs to follow due process, the rights and protection afforded to the accused limit the role of the prosecutors, while the defence can assume a much expanded role in defence of the accused, afforded rights and protection. The absence of due process is not primarily about depriving the accused of their rights, it could bring a “political show trial” in reverse.
The criminal justice system is slow and works against the forces of both political power and public opinion. No one is guaranteed a desired outcome – only a fair trial. There are always two trials going on, one in the courts of law, and the one in the court of public opinion. The verdicts can be strikingly different.
The law involves the human rights and freedom. The constitution – the country’s ultimate law, is based on perhaps the biggest mutual accommodation of all: the balance of individual rights and freedoms against the needs of society to govern it. These rights and freedom need to be taken seriously in spite of personal frustrations as the criminal justice system is the arbiter of truth and the truth seeking process.
The fundamental freedom under the law is guaranteed in the constitution. A trustworthy criminal-justice system is central to freedom and democracy. It needs to survive the political power and to withstand powerful public opinion. The rule, that convictions must be based on independent credible evidence may protect the guilty. But it protects something greater: the kind of society we live in – a system based on the fair trial.
The widespread disappointment following accused people escaping punishment, when they deserve to be punished, comes primarily from wrong expectations about what the criminal-justice system can properly deliver. The heart of the justice system stands against any predetermination. It is fine for those upset about such alleged offences to stand together. It is not fine to do so in ways that could subvert the justice system itself. Nobody would be surprised in this truth seeking process, if the outcome did not meet the truth the people desire.
The rule of law and democratic governance are two great achievements– both under growing stresses. The rule of law matters to a functioning society and security. If lost, a great deal will be undermined or destroyed. In a political world where facts seem to matter less, a world of fake news and demonstrably outrageous lies, people must become more alert to the foundations and importance of the rule of law and the criminal justice system.
The politicians, both in power and the opposition give endless interpretations to the commission’s findings and the recommendations, though none have read the report yet. Politicians are only interested in either protecting or grabbing power. The politicians and highly placed individuals use state power to protect them, not society. It was the rule of law, the criminal justice system, not politicians and highly placed individuals that protected the society. We need to pay attention to how well our criminal justice system is working,
However, at the heart of the frauds and corruption is the near-inability to punish offenders. Lack of necessary laws is a serious issue. They flout the law with impunity. The penalties imposed for the crime of fraud and corruption have not reflected the seriousness of these crimes and their impact, which only exposes more weaknesses in the system.
New tough laws need to be introduced to punish them in a meaningful way. They must be legally forced to surrender their ill-gotten gains. Anti-corruption activists were urging the government to introduce stringent laws to curb fraud and corruption for the last three years. It’s difficult to predict how long the government will take to do it, despite the recommendation of the commission.
Others say bluntly that the system isn’t working, and they’re right. In fact, it is so ineffective. Someone may get a few months in jail or are fined, and nothing happens to their ill-gotten gains. Their total take in the cases may be estimated at billions of rupees as revealed in the recent presidential commission report – straight out of the people’s pocket.
The presidential commission has recommended a forensic audit examination of the treasury bonds issued since 2008, as during its investigation evidence has surfaced of similar incidents having occurred during the period 2008 to 2014. The government’s approach to this recommendation needs to be watched closely. It was often found difficult to pursue the tortuous and hard trails of these frauds.
Even if the accused are found and punished, it will not be easy to recover the ill-gotten money. Pursuing the trails of corrupt politicians and individuals, especially those with high placed friends, and corruption committed with overseas connections is never easy. They hide the money moving them offshore. The cost to chase this money around the globe is hard, expensive and time consuming. Yet, it’s the people’s money; it needs to be found at any cost.