By 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.

Once 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).