4 December, 2020

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Anti Corruption Commission For Sri Lanka: Some Thoughts

By Siri Gamage – 

Dr. Siri Gamage

Dr. Siri Gamage

There is renewed interest and concern among various quarters of Sri Lankan society about the need for a more effective system of preventing, investigating and curbing corrupt activities by government officials, politicians and those who are close to them. There is also a wide spread view among people that the existing mechanisms for these purposes are not effective or sufficient. This article is to provide some ideas in this regard particularly in the light of the workings of New South Wales Independent Commission against Corruption in Australia (ICAC).

The composition, powers, staffing, resources, confidentiality – and independence from the government in the day to conduct of investigations – are important to ensure public confidence in such a commission. The judges and staff conducting investigations as well as solicitors assisting the chief judge/s have to be those who have experience and professional integrity. Once a complaint is made, the commission needs to have staff to conduct a preliminary investigation to assess whether the case deserves further perusal by the commission.

When a case moves to the next stage, more intensive investigations can be carried out by commission staff including accessing personal and/or official records, bank accounts, travel documents, financial accounts, personal and office computers, etc. For this purpose, commission staff should have powers to take into their custody necessary documents, computers, files and the like by gaining access to a person’s home or office or any other facility. If necessary, commission staff should have powers to conduct covert surveillance operations by tapping phones or video recording the physical movements of suspected individuals for the purpose of collecting necessary evidence.

CT CartoonOnce the evidence is collected, the commission should conduct a public investigation where a solicitor assisting the commission led the evidence against the individual who is suspected to have committed a corrupt activity. The person charged should also be summoned to answer questions that the commission may have. The suspect should be able to come to the investigation by the commission with a solicitor. When summons are served to appear before the commission, the person charged with an offence should be provided with a copy of the charges.

In the last few years, the ICAC in New South Wales in Australia has conducted several investigations against several high profile governing party politicians who were members of the State parliament. As a result of such investigations, several MPs and Ministers from the State government resigned from their parliamentary positions. Similarly, investigations focusing on former Labor government ministers involving the granting of mining licenses and the use of public office for gaining influence and engaging in corrupt activities to accumulate wealth also led to public hearings by the ICAC. One such investigation is still continuing against the former speaker of the state parliament. He also resigned from his parliamentary position as an MP while the investigation is still continuing.

Investigative journalists played a crucial role in uncovering and reporting corrupt activities of these politicians leading to the ICAC investigations. In one case, the premiere of the State of NSW resigned after it was revealed that he had received a bottle of expensive red wine after his election victory from a developer friend. His fault was that he could not recollect it during an ICAC investigation. The next day the person who gave the gift revealed evidence. The premiere resigned soon afterwards as his integrity was under a cloud. Public interest during ICAC investigations was very high on such matters in a context where the people expect their politicians and government officials to adhere to high standards of conduct.

One of the problems in the NSW ICAC process however is that it can only ‘recommend’ charges be laid against an individual suspected of corrupt activity to the State Parliament. It is the Parliament that has to decide to proceed with charges in a court through the attorney general’s office. In this event, the offender can use high-powered defense teams to contest the charges. Often it is believed that such well-paid defense lawyers find technical problems with the case and get favorable decisions for their clients. Thus some of those charged with corruption put a brave face before the media knowing that the ICAC process has it’s own limits. Yet their names get tarnished in the public hearing process by the ICAC and this is enough pressure for them to resign from public posts they hold. In the case of Sri Lanka, this loophole needs to be avoided.

There are instances when public institutions take corrective measures after an ICAC investigation. Thus in a case involving procurement procedures in a publicly funded university where a corrupt official obtained gifts and other rewards from supplier companies, the person involved was found guilty. The university was asked to improve its procurement procedures and to show the ICAC evidence of such improvement.

Given the number of cases being reported to Sri Lanka’s Anti Corruption and Bribery watchdog, it may be necessary to have more than one or two investigative teams on board. Likewise, it may be necessary to have several judges or judges’ panels to conduct simultaneous hearings. The investigative powers of commission officers may need to be strengthened as required. Adequate resourcing may also be necessary. Most importantly, until a case is built with sufficient evidence, confidentiality of the investigation and protection of the rights of individuals suspected of offences need to be protected. Lodging a complaint does not mean a person is guilty. Persons charged with an offence go through emotional stress and their well being needed to be assured during investigations and after – though the public interest should take priority

To reduce the work load of anti corruption commission, the government may want to consider either establishing or strengthening existing mechanisms for dealing with administrative irregularities in departments, statutory bodies, corporations, banks etc. In countries such as Australia, there are ombudsmen for this purpose. This allows organisations to deal with issues within the organisation itself and settle them. However, when it comes to large-scale corruption cases, they ought to be referred to anti corruption commission or the equivalent. When there are cases of criminal behavior such as fraud, it may be possible to go straight to the courts by the complainants.

Assuring the independence of the commission is most essential. It should be able to function at arms length from the government according to the powers and responsibilities entrusted by the parliamentary act. Whether such a commission should have judicial powers or not is a question that needs to be considered by legal experts. From time to time, given the case load and national importance of cases being raised by the public and the media, the government ought to be able to appoint special commissions with judicial powers or insist special sittings of the existing commission to expedite the process of dealing with specific cases in a way that does not infringe on the independence of the commission.

I am confident the mechanism for investigating and charging individuals who may have engaged in corrupt activities by using public offices in Sri Lanka will be strengthened in coming weeks and months. The new minister for Justice has pointed out that he plans to take some ideas to the cabinet in this regard soon (Sunday Times Columns, 18.01.2015).

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Latest comments

  • 1
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    Well said Dr Siri Gamage

    Unless there is a proper transparent Commissions appointed it will be like the several Commissions of the previous regime.

    • 2
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      Dr. Siri Gamage

      RE: Anti Corruption Commission For Sri Lanka: Some Thoughts

      “I am confident the mechanism for investigating and charging individuals who may have engaged in corrupt activities by using public offices in Sri Lanka will be strengthened in coming weeks and months. The new minister for Justice has pointed out that he plans to take some ideas to the cabinet in this regard soon (Sunday Times Columns, 18.01.2015).”

      It is good for the future.

      Prosecute the current criminals under ther current law and implement it.

      New Laws and No implementation means the same- Nothing Happens.

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    “There is renewed interest and concern among various quarters of Sri Lankan society about the need for a more effective system of preventing, – needs political will — investigating — needs more political will — and curbing corrupt activities by government officials, — needs even more political will — politicians and those who are close to them.”

    All this needs political will. The people are willing but the government is weak. Or we shall see…

  • 0
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    MY3 cannot act like a sleepwalker. He knows that expectations are very high. Majority Sinahalse was saved by minority sinhalease at this election.

    If MY3 letdown the very people he brought him to office and failed to restore Rule of Law, then people will have no other option but to revolt against the very system.

    I hope that MY3 will understand the heavy burden on him and act wisely and deal with all those who are responsible for abuses appropriately according to law.

  • 0
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    I thought Mr Siri Gamage’s PM Mr Ranil already told us that he would shut the Departure gates and arrest all the crooks on the 9th.

    Obviously PM Ranil didn’t have the ” resources” although he made his kick ass promise. Right….

    The Elite & the , Anglican plot has always been to portray Rajapaksa as Ali Baba with his 40 thieves.

    But they didn’t realize that their new President was with Rajapaksa for 40 years.

    Anyway this Corruption Allegation has gone past its Use by Date.

    The High Octane Consulates have now teamed up with the their mates in the Govt to push the alleged “Putsch” line to destroy Rajapaksa.

    Because the Elite have no chance of getting in to power until they destroy Rajapaksa and the core of the Hard Core SlFP leadership.

    Mythree obviously knows that he has no friends, but only users with him , except the JHU.

    Will Mtthree help the Elite to destroy his mighty SLFP which held the Presidency for 18 years and lifted the villages and the villagers for the first time since the the arrival Colonials.

    And Pollonnaruwara still has a long way to catch up with Colombo.

    Mythree surely must know that he and his brothers are not Elite, although they have the dosh.

  • 0
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    According to the “100 Day” Programme, with the 19th Amendment, there will come into force among other Independent Commissions, a “Commission against Bribery and Corruption and Human Rights Commission” on Wednesday January 21st. This is what tests the “Integrity” of the Government, in that, the people are waiting to see the members who would be appointed to head these institutions. The working mechanisms and funding, all that would be done; but the “Million Dollar” question is: “Who are the people who are going to function in these institutions”? I hope the President will take a “FIRM” stand and make the “RIGHT” choices of people to be appointed to function in these organizations. After all, the President must know that the failure of “SELECTING” the correct people to man the positions was the root cause that led to the downfall of the the Ex President. Let that be a “Lesson” to learn, not only to the President, but everybody else in the Cabinet.

  • 0
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    Siri Gamage,

    You must compare apples with apples.

    Sri Lankans like in Syamon’s recent article in CT are still medieval in outlook. Our mentality is still propelled by Mahanama myths, seth pirith, soothsayers, astrologers and unadulterated racist attitudes and as such is eons behind modern processes maintaining democracies in countries such as Australia and the UK. Not only the former rogue MARA’s hand is full of pirith noolas (to ward off evil influences)but even Sirisenas hand is full of them.

    You live in Australia and please do go to the Sri Lankan gatherings and see what a primeval bunch Sri Lankans are even though living within a modern egalitarian society. They are polarized into different camps, racial groups or religious groups or political groups and are full of venom, unadulterated hate, envious of others and they still sing Mohideen Baig, Rukmani and CT Fernando songs. Sri Lankan mentality is indeed stultified.

    Bribery and corruption is one thing to the Australian goose and definitely another for the Sri Lankan rats, rattlesnakes and buffaloes. MARA was not the only ‘tsunami hora’ who was pardoned. This time Sri Lankans voted for MS who is surrounded by Chandrika, another ‘tsunami hora’ and Ranil who maintained illegal torture houses in Batalanda housing scheme akin to ‘Guantanamo Bay’ where countless JVP cadres were tortured and killed. Principles of ICAC will be too much for the Sri Lankan mentality to digest.

  • 0
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    In your dreams.

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    This you may not see as relevant but please read on.

    On 4th June 1979, Flight Lieutenant Jerry John Rawlins the son of a woman from Ghana and a man from Scotland seized power in the West African country known as Ghana.

    Ghana was ruled by successive Africans from its time of independence in 1957. Ghana too was invaded and ruled by the Portugese, the Dutch and the British about the same timelines that Sri Lanka was invaded and ruled, except that the Porthgese invaded in 1481. Ghana is rich in Gold, Diamonds, Cocoa, Oil and Natural Gas.

    Till Jerry Rawlings seized power even though it had the best education systems in West Aftrica and produced the most of the scholars for Africa, though it had huge deposits of natural reserves the lives of the poor, which was 98 percent of the population, remained extremely poor at that time. Jerry Rawlins was only 31 years of age.

    Jerry Rawlings changed all that. He jailed and executed the known corrupt. He did not waste his time. On one Friday afternoon in July 1979, he lined up every living ex-prime minister and made them face the the firing squad. The so called civilized world screamed but the so called civilized screamers never fed the poor of Ghana.

    Then Jerry Rawlins re-built Ghana. When he wanted to leave office after four years the poor cried and wanted him to contest the elections. He did as a civilian and won. He then built Ghana to be one of the strongest economies in Africa. He left after two four year terms.

    We need a Jerry Rawlins in Sri Lanka. The corrupt politicians, however big and whoever, should be tried and got rid of for good.

    Soma, my mother’s poor house maid who worked for my mother for the past 25 years during the periods of various governments got poorer and poorer. Even though she is paid 40,000 rupees a month, given health care, travelling money etc., now fifty years of age she is frail and has nothing to show for her life. My mother built her a two bedroomed house complete with attached bathroom, a living room, a kitchen and a dining room (all tiled and at a cost of four hundred fifty thousand rupees) and at least she got something she can be happy to show for her life’s work. Soma is lucky. My mother herself had humble beginning and brought all of us up with great difficulty. She never forgot that she was poor once.

    Where did Namal Rajapaksa get money to lead the super luxury life of his. Rohitha and Yoshita and Shiranthi, and thousands of Rajapaksa relatives and hangers on had a life un – believable for Sri Lankans. All these came from the sweat of millions of poor Somas.

    Come on General Fonseka you are one hope Sri Lanka has. You rid Sri Lanka of the terrorists. It is time you rid the country of economic terrorists who are the scum of this country who drained it for nine years and treated Sri Lanka as their private cash cow.

    JP

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    Also investigate the corrupt officials who abused state power as Diplomats. Bandula Jayasekara has a lavish life style in Sydney, up market apartments and spent millions of rupees on Independence Day celebrations in 2014 cruising with women and an Australian PR girl when other missions celebrated at their embassies with the Sri Lankan people they are appointed to serve. The benefits offered to foreign journalists in Sri Lanka and the Australian Newspaper by Jayasekara should also be investigated for writing pro MR regime articles. I remember the article in Universal News and many others. He took personal care of the female journalist by arranging interviews with MR and Gota. Intimate relationships with these women for interviews and pro gov articles for MR regime.

    Yasara Abeynayake is now in Sydney too living the high life with state money at the embassy. Jayasekara and Aneynayake talking down the new government but living on state money in Sydney. Send them both back packing. Disgusting.

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