Catching the sprats again

By Kishali Pinto Jayawardena

This week's press notification that the Bribery and Corruption Commission had been successful in its prosecution of a police sergeant who had solicited and accepted a bribe of Rs 6,000 from a bootlegger in exchange for promising not to haul him up before the law, awakens no particular joy in our hearts. This is another typical example of a sprat being caught by the Commission while the voracious sharks (political or otherwise), who enjoy their ill gotten millions, (and indeed billions), get away with scarcely a slap on the wrist except some easily forgotten newspaper publicity, COPE reports or otherwise.

The police sergeant had reportedly been sentenced to four years rigorous imprisonment by the Colombo High Court and no doubt, must be now somberly ruminating in prison on his bad karma for getting caught while all around him are engaging in the very same actions and worse, with absolute impunity.

This pattern of netting only the small timers has to stop. The Commission which is empowered to investigate allegations of offences and to direct the institution of proceedings against such person for such offence in the appropriate court, must enforce a far more pro-active working of its statutory mandate. If a strong Commission comes into being, there would be minimum need for ambitiously funded anti-corruption plans. On the other hand, in the absence of such an effective deterrent, all the goodwill in the world and all the most rigorously drawn up 'sensitisation programmes', 'training programmes' or talkshops on combating bribery and corruption will accomplish little.

From its inception, the Commission (established in terms of Act, No 19 of 1994) has manifested a most singular dysfunction between the grandiloquent objectives with which it was established and its actual practical achievements. The authority of the Commission may be invoked in writing by any individual writing to the Commission as set out in Section 4 of the Act. Section 5 stipulates the considerable powers bequeathed to the Commission upon the conducting of an investigation as mandated by the Act. Where the commission of an offence is disclosed, the Commission (vide Section 11) shall direct the Director General of the Commission to institute criminal proceedings against such person in the appropriate court. Indictment under the hand of the Director General is recievable in the High Court. However, a consistent pattern evidenced has been the prosecution of a schoolteacher, grama seva niladhari or a police constable for minor infringements rather than an active engagement in the continuing corruption scandals involving senior public officials and huge amounts of money.

The Commission's complaint is that, per Section 4, it cannot investigate a complaint on its own initiative, thin as this excuse may be. In any event, the Commission must then be foremost in pushing through the necessary amendment that would bestow explicit powers to engage in suo moto investigations. Merely reciting this as a reason for its lack of proactiveness will not do.

As this column has reflected upon previously, the Act should be amended in order to clarify the role of its Director General. Section 16 provides for a Director General to "assist the Commission in the discharge of the functions assigned to the Commission." The DG 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. (Vide Section 16). In addition, though a laborious procedure is prescribed for removal of the Commissioners, provisions governing the removal of the Director General are minus basic safeguards.

It is indeed pertinent to examine as to whether the 1994 Act situates the Director General in a position inferior to the former Bribery Commissioner under the old Bribery Act and reduces the Director General to nothing more than an investigating officer of the Commission. It is the Commission itself that is empowered to enter into investigations and the Commission could, in fact, direct any officer other than the Director General to look into a particular case. Criminal proceedings are instituted against individuals by the Director General but only upon direction of the Commission and it is only in this context that indictment could be signed by the Director General.

The capacity of independent action given to the Director General is limited. In fact, the final draft of the law that came in Bill form before Parliament referred to the Director General merely as a Director. The more grandiloquent phrasing in the Act obviously emerged through the parliamentary debates and amendment process. The framers of the law probably would have reasoned at that time that the security of tenure of the Director General need not be guaranteed to the same extent as the Commissioners. However, this has been proved to be a grave defect in the law as we have seen in disputes between the Commissioners and the Director General on past occasion. Amendment of Section 16 of the 1994 Act should therefore bring about a more rational balance between the Commission and the office of its Director General by providing that the appointment of the DG should be on defined criteria and the removal of that officer should be subject to statutory safeguards.

Again, the Commission should be overseen by an independent body in a manner similar to the Independent Commission Against Corruption (ICAC) in Hong Kong. These ICAC advisory committees which are formed of citizens and professionals include a general committee which oversees the overall direction of the ICAC and advises on policy matters, an operations review committee that examines the investigative work of the ICAC, a corruption prevention advisory committee that looks at corruption prevention studies and a citizens advisory committee that educates the public and enlists their support. Meanwhile, an internal investigation and monitoring group handles all complaints against ICAC staff that are then reported to the operations review committee.

Further buttressing the internal integrity of the ICAC, an independent ICAC Complaints Committee chaired by an Executive Council member monitors and reviews all complaints against the ICAC. The Sri Lanka Act should be overhauled to provide for a measure of independent supervision given severe internal controversies that were evidenced during the tenure of previous Commissioners, including an 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 then President Kumaratunge in violation of the secrecy oath.

The manner in which the independence of the Commission could be secured arises in many other ways as well; for example, putting into place an independent and non transferable contingent of anti-corruption police, greater securing of financial independence and so on. However, these suggested reforms should not detract from the fact that the Commission, as presently constituted and empowered, can do a lot more to stem the endemic prevalence of bribery and corruption in this country if it manifests the necessary will to do so. Conversely, even with the best Commission in the world, if the will to make a difference is not manifested, the body will remain confined to paper. This is the wrenchingly bitter lesson that Sri Lankans have learnt during the past many years.