Ms.
Gamage: in dilemma
Machiavelli might well have admired the fiendish
ingenuity with which the plot is twisted and turned around key players in the
controversy presently surrounding the Permanent Commission to Investigate
Allegations of Bribery and Corruption, Sri Lanka’s premier graft fighting
body. Months of speculation as to acute dissension between members of the
Commission and its Director General Nelum Gamage exploded last week when the
latter filed writ in the Supreme Court against Chairman of the Commission,
T.A.D.S. Wijesundera, Commissioner Rudra Rajasingham and Superintendant of
Investigations M.M.S. Othanapitiya for “acting with malice and hostility
against her”.
Further shocks were in store. As the Director General woke up on Wednesday morning which was the day on which her writ petition was to be heard, newspapers carrying banner headlines gave her the news that a warrant had been issued by Colombo’s Chief Magistrate Munidasa Nanayakkara for the arrest of her husband Lal Gamage who is under investigation by the Commission for alleged improper conduct and abuse of his wife’s position.
Mr. Gamage’s lapse was reported to be that he had failed to turn up for a check on his handwriting and fingerprints needed in the ongoing investigations. Protesting that on no occasion had he refused to submit for this purpose but had merely requested time to consult legal counsel on the matter, a right perfectly available to him, Mr. Gamage surrendered to court the following day. Twenty four hours later, papers filed in the High Court by his lawyers to set aside the order of the Magistrate was allowed amidst scathing criticism by High Court judge Titus Cooray who reprimanded investigating staff of the Bribery Commission on the procedure followed in the instant case.
“ The report submitted to the Magistrate which stated that the suspect had refused to submit to his handwriting and fingerprints being taken is a false and corrupt report’ he ruled.
It was pointed out that a warrant should never have been sought from the Magistrate without duly notifying the suspect. State counsel appearing for the Attorney General who had been cited in the application as the second respondent, was also compelled to listen to severe strictures from the Bench.
Meanwhile, the writ petition filed by the Director General in the Supreme Court was put off due to Justices A.R.B.Amerasinghe and D.P.S. Gunesekera declining to hear the case on grounds that the petitioner and the first respondent retired Supreme Court justice T.A.D.S. Wijesundera were personally known to them. The matter is scheduled to be taken up the coming Wednesday before a Special Bench.
Director General Nelum Gamage is no stranger to controversy. Counting twenty two years in public service, her post as Bribery chief under the waning years of the UNP regime became an issue following action taken by her against a powerful UNP minister who had been accused of bribery. Her subsequent “kick” upstairs to the Justice Ministry resulted in the Opposition promising her reinstatement in their manifesto. With the shifting of power in 1994, this promise was carried out, but there was a twist in the tale.
Late the same year, an ambitious package of anti graft laws which amended the old bribery laws and introduced a new offence of corruption was passed unanimously in Parliament. The new laws set up a Permanent Commission to investigate allegations of Bribery and Corruption comprised of three Commissioners under whom all investigations into bribery and corruption were mandated to take place. Nelum Gamage was appointed Director General, a high sounding post but with only a fraction of the powers that she enjoyed earlier as Bribery Commissioner.
The Director General became an investigating officer with all substantive powers in the hands of the Commissioners. The decision to investigate a particular matter was given to the Commission. Thereafter, the Commissioners were empowered to refer the matter to the Investigating Unit either directly or through the Director General, and their report was directed to be sent to the Commissioners with a recommendation for necessary action. The decision to indict a particular suspect could be taken only by the Commission.
The Commissioners themselves were to be appointed by the Constitutional Council set up under the proposed constitutional reforms, but the first appointments were made by the President as the Council had not actually come into being. Retired judges of the superior courts T.A.D.S.Wijayasundera and Siva Selliah and former Auditor General P.M.Wijayasuriya were appointed Chairman and Commissioners respectively. With the resignation of the latter some months afterwards, retired IGP Rudra Rajasingham was appointed in his place. Meanwhile, the vacancy that arose when Commissioner Siva Selliah passed away in December last year has not been filled as yet and the Commission continues to operate with only two Commissioners.
Members of the Commission are appointed for a fixed term of five years removable only on motion of the Parliament.
As the Commission and its Director General lock horns in what appears to be a fight to the death (metaphorically speaking, of course) the allegations in the petition contain some heady stuff. Director General Nelum Gamage has complained that an investigation has been launched against her in a manner not authorized by the 1994 Commission Act.
Under Sections 3 and 4(1) of the Act, the Commission is empowered to investigate into allegations of bribery and corruption if the Commission is satisfied that such communication is genuine and discloses material upon which an investigation ought to be conducted. In this case, the Director General states that she had not been informed of any allegations of bribery and corruption made against her in terms of the relevant act and the Assets and Liabilities Law.
What she has been called upon to answer relates to four issues. The letter calling her to appear before the Commission under the signature of its Chairman mentions that she is required to reply allegations that involve drawing of holiday pay for 1995 and 1996 totalling to a sum of Rs 110,280/10 and drawing a risk allowance from the 15th of December 1994 onwards when the petitioner was an officer whose salary and allowances are determined by Parliament.
The Director General has also been asked to reply to the role that she played pertaining to two files relating to allegations against former Excise Commissioner W.N.F.Chandrananda and Chairman of the former Urban Council Kotte Chandra Silva who is presently the Mayor of Kotte. The letter mentions that the Commission expects to examine the Director General in respect of the assets declaration that she has made under the Declaration of Assets and Liabilities Law.
All four issues have been comprehensively addressed in the petition. It has been pointed out that the application for holiday pay to the Director General had been duly approved by the Director Establishments/Secretary Public Administration in terms of the relevant law and that during the past two years, most of the investigation work was directed through the investigation branch by the Commission via her, with a heavy volume of work being carried out by her in the absence of two deputies, several legal personnel and the Assistant Director( Administration).
It has also been stressed that even though the Director General is entitled to payments for work outside her normal working hours, she has not claimed such payments on each and every occasion that she has so worked.
Proceeding to the allegation that she has drawn unauthorized risk allowances the Director General again points out that payment of risk allowances to the Director General and all other permanent officers of the Commission had been approved by Cabinet. This however did not include the Commissioners who are appointed for a specific period. As a result, in a series of letters sent to the President by the Commission under the authority of its Chairman, it was suggested that the payment of risk allowance ought to be extended to the Commissioners as well.
“The Commission wishes to emphasize that the 3 Commissioners are always involved in investigations at state or national level involving prominent and important figures in the public life of this country, as well as investigations of bribery and corruption of high ranking Army, Service and Police personnel and public officers attached to State Departments, Public institutions and state banks involving many millions of rupees of public money. As such, the members of the Commission are at all times exposed to very great risk to their personal and physical safety and have been under threat and continue to work under conditions of very great stress in the daily performance of their investigations and duties which encompass both legal and deep investigative processes in the effort to eradicate bribery and corruption in the public life of this country,” says one letter sent in July 1995. It goes on to request the Secretary to the President to get Cabinet approval for payment of the risk allowance to the Commissioners and ensure uniformity in payments within the structure of the Commission.
The Director General makes the specific point that in none of these letters was there any reference to her drawing the allowance in issue without the authority of Parliament. In fact, in the above mentioned letter the Commission refers to the Cabinet decision to pay such risk allowances to specified officers of the Commission including the Director General and states that “the Commission is deeply appreciative of this step”.
The role played by the Director General in the two files relating to Chandrananda and Silva is also referred to. Stating that the allegations against the Director General in connection with these files are vague, the petition emphasizes the commanding role played by the Commissioners in all cases of alleged bribery or corruption that is brought before it and in relation to which her powers are definitely subordinate. The Commission is not bound to refer all files to her but could send them directly to the Investigating Unit if it so wishes.
The Director General professes herself to be at a loss to understand as to what exactly she has been accused of, but goes on to state that on her attention being drawn to the latter file, she had made a minute that since she was known to the suspect, she would not handle the file at the investigation stage but would only sign the indictment should there be a prima facie case against the suspect.
Meanwhile, the letter sent by the Commission to the Director General directing her to appear before it adds that there are a few matters that the Commission wishes to clarify from the Director General pertaining to the ongoing investigations conducted by the Commission against the Director General’s husband, Lal Gamage. Mr. Gamage is presently being investigated on the basis that he had falsified his birth certificates in order to give a different date of birth in obtaining employment and in applying for and receiving a distress loan from the National Building Research Organisation which he joined as director administration in 1990. While these are the matters at the core of the case against Mr. Gamage, allegations were also made that he had business dealings with Chandrananda and Silva against whom petitions were received by the Commission.
In the petition itself, the Director General states that she was aware that the Commission was continuing an investigation against her husband but that she played no part in the investigations. Consequently, she had been greatly disturbed when Chairman Wijesundera had spoken to her at the conclusion of the monthly meeting in October and wanted to know as to who would sign indictment against Mr. Gamage. She had replied that the Director General is statutorily empowered to sign indictment. It was following this that he had informed her, much to her surprise that she herself had to be questioned by them. He had moreover directed that she appear before the Superintendent of Investigations who is a subordinate officer, in response to which she had sent him a letter regretting her inability to appear before the latter, and requesting to appear before one or the other of the Commissioners. This request was declined. It was subsequently to this that she had been sent this letter with the four matters on which she was to be questioned.
The petition shows the existence of a long and disturbing hostility between the Commissioners and the Director General which according to the latter, arose when she refused to permit the Superintendent of Investigations to use an official car for personal use. Subsequently, she was invited by name to participate at an Anti Corruption Conference in Lima, Peru in 1997
Chairman Wijesundera had refused to recommend her on the basis that he had reported adversely on her being allotted holiday pay. Instead the Chairman had nominated Deputy Solicitor General Rienzie Arsecularatne who in any event was unable to attend the conference as the invitation issued to the Director General had been made by name. Deputy Solicitor General Arsecularatne is one of the three legal officers assigned by the Attorney General’s Department to the Permanent Commission and was appointed acting Director General when Director General Nelum Gamage left for Bangladesh on a private visit earlier this year. It was during this time that allegations against her husband were splashed across the pages of some sections of the media and calls were made for her resignation.
As the Director General travels to Hulftsdorp on Wednesday the question will be whether the allegations against her could be said to amount to corruption. It is only if this is satisfied that the Commission can call her or indeed any citizen of the country before it to answer. Mere general allegations will obviously be insufficient. Corruption has been defined in the Act in appropriately tortuous legal jargon as being doing or forbearing to do any official act, inducing any other public servant to do or not do same, using any information coming to his knowledge or participating in the making of any decision by virtue of his office as public servant or using public office to induce any other person to act or not to act.
All this should be with the intent or knowledge to cause wrongful or unlawful loss to the Government or to confer a wrongful or unlawful benefit, favour or advantage on himself or any other person.
In the petition, the Director General asserts that the allegations mentioned against her by the Commission are vague and more in the nature of administrative irregularities rather than allegations of bribery or corruption. She has called upon the Supreme Court to quash the decisions of the Commission in the letters ordering her to appear before it, and to restrain it from continuing with the investigation.
The Director General has also requested the Court to make order staying the respondents from proceeding with the investigation until the final decision of the Court is given. It is pointed out that otherwise, her reputation would be affected and irreparable loss and damage would be caused.
And therein hangs a tale. Ultimately, the issue becomes more complex than whether the Director General is allowed to continue in her post or whether the Commission proceeds with investigation against her and her husband. The more disquieting question concerns public confidence in the Permanent Commission itself.
Strong words of censure emanating from the Colombo High Court over the manner in which the warrant for the arrest of Mr. Gamage was issued is one manifestation. Before that, there was a strong cause for concern when minute details of what was transpiring in the Commission against Mr. Gamage appeared in some sections of the media despite a tough secrecy clause that prohibits Commission officials from disclosing any information. Equally disturbing was the apparent unconcern of the Commission as to how these details were coming out.
Clearly, ambitions so exuberantly voiced in 1994 of setting into motion an effective campaign to tackle graft in the country has badly misfired. Complaints of corruption against officials in almost every field of public life splutter and fizzle out like so many damp firecrackers. Instead we busy ourselves with disputes concerning vehicles, payment of authorized allowances and warrants issued for the arrest of suspects in a manner that shames civilized norms. Grace for those Sri Lankans still hoping for a more accountable society appear to be long gone.
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