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President will be brought within scope of new law: 74-page SC determination on the draft Anti-Corruption Bill
View(s):By Namini Wijedasa
The President will be brought within the scope of a sweeping new anti-corruption law under an amendment that the Attorney General’s Department undertook to the Supreme Court (SC) to include in the committee stage.
This was revealed in the 74-page SC determination on the draft Anti-Corruption Bill delivered this week by a three-judge bench comprising Justices Jayantha Jayasuriya, PC, Murdu N. B. Fernando, PC, and Janak de Silva.
There were six petitions challenging the Bill’s constitutionality. The Court’s jurisdiction was invoked broadly on four grounds, the determination said. Firstly, it was contended that vesting corporate personality on the proposed Anti-Corruption Commission (ACC) that will oversee bribery or corruption investigations compromises its independence.
Secondly, that the terms and conditions of service of the current employees of the Commission to investigate Allegations of Bribery or Corruption (CIABOC) were being changed to their detriment.
Thirdly, that several clauses of the Bill were inconsistent with one or more provisions of the Constitution. Finally, that the Bill was not effective to combat bribery and corruption unless certain specified amendments are made.
The SC found several clauses to be inconsistent with the Constitution but held that the inconsistencies will cease if the amendments set out in the determination are introduced.
One such change was the amendment of a line in clause 162 to include the President under the definition of a public official (it was earlier Prime Minister, downwards).
Saliya Pieris, PC, who appeared for petitioners the President and Secretary of the Bar Association of Sri Lanka, had pointed out to Court that the conduct of the President of the Republic was excluded from the Bill in view of the definition of a “public official”.
“It was said that the age-old adage ‘Power corrupts, absolute power corrupts absolutely’ holds true, and ‘higher’ the public official, the stronger the accountability provisions against him should be for rule of law to override greed and caprice which inevitably follow positions of power,” the determination cites Mr. Pieris as submitting.
“It was contended that excluding the President from the reach of the anti corruption regime envisaged by the Bill is inconsistent with the fundamental right to equal protection of the law guaranteed by Article 12(1) of the Constitution, and such exclusion can only lead to encouragement of impunity,” it states.
Article 12(1) states that: “All persons are equal before the law and are entitled to the equal protection of the law.”
“We are of the view that excluding the President from the application of the provisions of the Bill is arbitrary and impinges on the sovereignty of the People which includes a right to a Government free of bribery or corruption,” the bench held. It determined that clause 162 was inconsistent with the Constitution and needed a special majority.
However, Additional Solicitor General (ASG) Nerin Pulle, PC, who appeared for the State, submitted that a committee stage amendment will be moved to include the President within the ambit of the law, thereby removing the inconsistency, the determination said.
Several Counsels for petitioners submitted that the Bill infringes on the provisions of the Right to Information (RTI) Act. Mr. Pulle countered that the Bill provides for the appointment of an Information Officer and a Designated Officer in terms of the RTI Act while it also makes express reference to the applicability of the RTI Act.
Nevertheless, the ASG undertook in Court that an omnibus provision will be added as a committee-stage amendment clarifying that the RTI Act applies and that “all non-disclosure provisions” of the Anti-Corruption Act will have to be interpreted accordingly.
Harsha Fernando, who appeared for five petitioners, pointed out that the Bill limits the ACC’s regulatory authority over the public sector to monitoring and coordinating, examining, advising and assisting and liaising.
By contrast, the Commission is given regulatory authority to prescribe codes of conduct that “shall be adhered to by the private sector entities”. The wording makes regulatory action on the private mandatory/binding, and public sector optional/non-binding, he said.
The SC held there was “much merit” in these submissions. The ACC has the power to introduce codes of conduct “which go beyond measures aimed at preventing bribery and corruption and encroach onto commercial practices in a broader context”, it observed.
“There is also arbitrary classification in allowing the Commission to monitor the private sector without submitting the public sector to the same monitoring process,” it said.
The bench determined the relevant clause to be inconsistent with the Constitution and proposed amendments that included the introduction of a new clause that reads: “to introduce codes of conduct for prevention and eradication of bribery and corruption in the public sector which shall be adhered in the public administration”.
Mr. Egalahewa appeared with N. K Ashokbharan for ten petitioners; Dilumi de Alwis appeared for one petitioner; Harsha Fernando with Chamith Senanayake, Yohan Coorey and Ruvendra Weerasinghe appeared for five petitioners; Pulasthi Hewamanne with Harini Jayawardhana, Fadhila Fairose and Githmi Wijenarayana appeared for Transparency International Sri Lanka; Saman Liyanage with Poorni Subasinghe appeared for two petitioners; and Mr Pieris with Mr. Hewamanne, Ms. Jayawardhana, Ms. Fairose and Ms. Wijenaranayana appeared for the Bar Association of Sri Lanka.
ASG Nerin Pulle, PC, with Deputy Solicitor General Dr. Avanthi Perera, State Counsel Indumini Randeny and State Council M. B. M. Sajith Bandara appeared for the State.
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