23 June, 2024

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Draft Anti-Corruption Law; Urgently Required Additional Law Reforms: An Open Letter To Minister Of Justice

By Chandra Jayaratne

Chandra Jayaratne

An open letter to Minister of Justice, Wijeyadasa Rajapakshe

This note is further to the submission handed over to you, during the public presentation of the draft Anti Corruption Law held at the Sri Lanka Foundation Institute on 3rd April 2023, a copy can be read here. You are kindly requested to consider the following “Post Script” submissions, along with the submissions aforesaid and we urge you to incorporate necessary amendments in the draft Anti Corruption Law prior to its tabling in Parliament:

1. As provided for in Article 156 A (1) requiring the establishment of a Commission to investigate allegations of bribery or corruption and stating that such law shall provide for “(c) measures to implement the United Nations Convention Against Corruption and any other International Convention relating to the prevention of corruption, to which Sri Lanka is a party”, we reiterate our appeal for you to take effective steps to concurrently incorporate the said Convention as a part of the substantial law of Sri Lanka

2. We reiterate once again that the proviso incorporated under sections 99 stating “that it shall not be an offence for a public official to solicit or accept any gratification which he is authorized by any written law or by the terms of his employment to receive” and 101 stating “that such offer of a gratification to a public official as is referred to in paragraph (b) of this section shall not be an offence under this section if the offeror proves that the gratification was bona fide offered for a purpose not connected with and not relating to such dealings as are referred to in that paragraph” since this proviso will be leveraged by the defense to negatively impact on effective judicial review of the charges framed as falling within the scope of coverage of the word “gratification” as interpreted in section 162.

3. We further reiterate the need to amend Section 69 of the draft enactment permitting the Commission, at its discretion, to seek assistance of specialist prosecutors from the private bar, where deemed essential in the prosecution of high profile/high value cases.

4. Revalidate whether the transitional provisions in Part V especially sections 163 (2) (d) and (f) as well as 163 (3) adequately encompass the following areas of the work of the present Commission:

* to continue with investigations yet in progress and / or where cases filed under the repealed Act are yet in progress,

* supported by both old and new investigation, intelligence, information, data analysis and evidence secured, including those secured via networking with authorized local and overseas third parties/agencies and / or received in response to Mutual Legal Assistance requests and external investigation/law enforcement authority network facilitations

* complaints received prior to the new Act, where investigations had not commenced any new intelligence or new referrals secured from other local and overseas agencies post enactment of the new Act but relating to periods prior to the new law becoming effective

5. Consider expanding objects of the Commission as specified in the provisions of section 40 – stating that “Measures to prevent corruption and proper discharge of its functions” by the addition as sub clause (j) to read as:

“To publicly promote, develop Codes of Conduct and Ethics and advocate legal reforms towards developing a culture that any direction or order given by an empowered Superior including a Minister or Secretary of a Ministry, which conflicts with any law or regulation or best practice guidelines/codes of conduct and ethics or is connected with any action that will cause a loss or damage to the state or to the national economy or society at large, should not be carried out and that any such requests should lead to “whistle blower declarations” and assure that any such declarer will be protected by the “whistle blower” protection provisions of the Act.

6. In due recognition of the United Nations Convention Against Corruption (UNCAC) covering the concept “Illicit Enrichment”, commonly defined “as the enjoyment of an amount of wealth that is not justified through reference to lawful income”, kindly consider incorporating within the new draft enactment the legislative format for Civil Illicit Enrichment penalization, with provision for issue of “Unexplained Wealth Orders” along with Non Conviction based Civil Confiscations. Thereby allow Courts to sanction a person for acquiring or enjoying an amount of wealth which has not, or cannot, be explained by reference to lawful sources of income – and judicial determination be done without the court being satisfied, to either a civil or criminal standard, that a separate or underlying criminal action has taken place.

7. Consider expanding/aligning section 106- dealing with Bribery in the Private Sector – by introducing a section similar to Section 7 of the UK Bribery Act reading as: “Failure of commercial organisations to prevent bribery

(1) A relevant commercial organisation (“C”) is guilty of an offence under this section if a person (“A”) associated with C bribes another person intending—

(a) to obtain or retain business for C, or

(b) to obtain or retain an advantage in the conduct of business for C.

(2) But it is a defense for C to prove that C had in place adequate procedures designed to prevent persons associate with C from undertaking such conduct.

(3) For the purposes of this section, A bribes another person if, and only if, A—

(a) is, or would be, guilty of an offence under section 1 or 6 (whether or not A has been prosecuted for such an offence), or

(b)would be guilty of such an offence if section 12(2)(c) and (4) were omitted.

Looking  forward to a duly updated draft Anti Corruption Bill being tabled in Parliament.

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Latest comments

  • 6
    0

    This regime is a combination of Terrorists and Corruptors who brought Bankgruptcy to the people and Country. We suddenly came up with the terrorists threat to attack a Mosque in Akurana. Therefore, we need to bring the anti-Terrorism Act immediately. Otherwise Terrorists will attack all Mosques, Churches etc. We don’t need an anti- Corruption law because we have found repeatedly all our politicians are very very clean and not a single case against them. Only corruptors remain are poor people. So, now people have to decide which is important. Anti-Terrorism law or Anti-Corruption law from Rajapaksa?

    • 5
      0

      Most of the corruption can be attributed to the culture of impunity since independence. It is time to get rid of the old lot and the most practical of achieving this is by introducing age and term limits to elected office in a new constitution, as well as introducing equal representation of both sexes in the Parliament. There are more than enough educated, bright younger candidates capable of doing a good job if given the opportunity.
      It’s time for some significant real change!

  • 6
    3

    Any changes must consulted with Kandy Mullahs first.

  • 7
    0

    The need of the hour is to have honest, patriotic people with no vested interests, in positions of authority to draft and enact legislation the majority of Sri Lankans are crying out for. Sadly, there seems to be a dearth of persons of good upbringing and decency in positions of power today. We are left at the mercy of a bunch of corrupt and self serving parasites also known as politicians.

  • 13
    0

    Dear Chandra

    I respect the efforts you have put in to your great article.

    But I am afraid you are wasting your time. These crooks in our parliament and RW/R goons are not interested in wiping out corruption. If the Rule of Law applies without any new laws, almost 80% of all these goons should be in jail for life; crime: betrayal of public trust, Betrayal of the oath , taking bribes using public office, stealing national wealth, manipulating bond auctions, bribing opposition party members to join, etc. etc etc.

    This proposed bill is yet another joke to hoodwink our people to create an impression of Rule of Law.

    Rule of Law does not exist in SL. It had a total death with JRJ 1978 constitution. You know how I can prove?

    Tell me how many politicians, national or local have gone to jail for any violation? none.In fact we have a MP whjo was foung guilty of Capital murder sitting in the parliament guiding our nations history!

    If Rule of Law works right Wijedasa, all R’s, RW, Ranatunga’s and dozens from both parties should be at the head of the line heading to jail for life.

    All this is because our STPID constitution has NO separation of powers ! MP’s are bribed with Minister posts with public money thereby killing the separation of powers between President and parliament.

    Asia’s Chronically Sick Nation !!

    • 6
      2

      Dear Asoka,
      .
      I’m glad
      to see you coming back here after your recent article on inefficiency:
      .
      https://www.colombotelegraph.com/index.php/government-services-still-the-same-chaos/
      .
      There are crooks who use that inefficiency to further their despicable aims. That gets done in myriad ways. Some of them got exemplified here:
      .
      See for yourself how one of the cleverest commenters on Colombo Telegraph., old codger, betrays himself as an anonymous and unprincipled rascal.
      .
      https://www.colombotelegraph.com/index.php/imf-forecasts-systemic-crisis/
      .
      I was glad to find his jesting companion, nimal fernando, excusing himself early, and not returning. Let me hope that we see him here soon.
      .
      Now, when conditions are getting ever more severe, and the threats from this corrupt administration loom ever more menacing, it is important for us to unite in opposition to those evil forces.
      .
      Panini Edirisinhe of Bandarawela

      .

      • 3
        2

        SM of Bandarawela,
        I don’t know about you, but when I can’t answer arguments put forward by you, I wouldn’t dream of calling you a pretentious old fart. Certainly I wouldn’t call you an unprincipled rascal because you can’t name one principled politician.

        • 4
          1

          OC,
          .
          Tourists to SL constantly complain that many people are happy to help in SL but not a single person in COLOMBO fails answers their simple question of finding an address. They called it the Sri Lankan and South Asian mentality. Koheda YANNE MALLE pol answers are common according to them.

          Also, the Sinhalese man can be a kind and unique person, he does not pay attention to the question asked to him. It’s his brand name.

          He is good at repeating English vowel sounds and hero worship, but apart from that we cannot expect a coherent answer from him. We have to make up our mind.

          SINHALA_MAN with his brave fight against anonymous CT commenters MAKEs it unique to him.
          My grandmother explained the beautiful stories of Sinhala Buddhism (which is not real buddhism as made it clear earlier) to me, but what did it bring me if they were all based on “fables” taken from Jataka stories?

          And the Sinhala man can sing the song in fovour of the MURDEROUS JVP, but he never see it back and correct himself.

          Those MOTHERS that lost their beloved sons would never allow JVPrs to be the rulers for us. Pigs might fly if that would turn upside down….
          .
          Period !

          • 1
            1

            Correction:
            Not a single person answers correctly about finding an address.

        • 3
          2

          SM,
          I hope you can see the advantages of anonymity now. When Panini Edirisinhe of Bandarawela is shown up in public as a right royal ( sorry, Thomian) ass, even his wife or his granddaughters can read about it. Or a certain Dutch lady on YouTube for that matter.🤣🤣

          • 3
            1

            OC,

            Let s make “Rata thanakola, a best variety of grass” the staple of our people.

          • 1
            3

            Dear “old codger”,
            .
            Isn’t it about time that we faced up to the real issues, the real situation?
            .
            We have all got to look after ourselves first, and not pass on to others the problems caused by our own incompetence. You have adopted the practice of putting yourself first, and you have made intelligent and welcome comments for twenty years (approximately) on this platform. I’ve been commenting for about eight, since such commenting became “legal“.
            .
            In this instance there is a clear difference between what is “legal” and what is “morally permissible”. Morality is a human invention, but it is that invention that separates us from other life forms. Examine it carefully, and after a certain point, I can make no progress.
            .
            I was conscious of what I was doing when I revealed my identity. Some read so superficially that they don’t care how inconsistently a guy like you writes. I have valued your comments, and I may still find some of them useful. But the respect that I had for you has diminished drastically after I found you such an enthusiastic supporter of the politics of the “illegitimate” Ranil Wickremasinghe.
            .
            I will not court disaster, but have already left behind your level of cowardice.
            .
            Panini Edirisinhe (NIC 483111444V) of Bandarawela

            • 2
              0

              If assumed Dullas was elected as the Prez in the interim govt, how far would we have moved ?
              it is reported that PAKISTAN is not yet given a green light by IMF.
              I am not a fan of anybody. Nor would I ever vote anyone.

              As some thoughtful commenters (though handful) once said, right at the moment they would not know who could iron out the huge damages. Gas and petrolium were dire issues, that sent picture of ” serpentine blue queues ” and made it our identity those days (if you google cooking gas, blue gas cans carrying customers and their road blocks make us unique on the web). However, ungrateful people led this nation, have forgotten the ground realities, even if they truly know the background and the dangerous nature of the ground realities.

              He is a newbie so as AKD to external affairs. As MARA manipulated all society, similarly, AKD will mislead the crowds. Modayas led srilanka would not care much about the facts and truths yet today.
              .
              So the answers to above would be clear even to a school going children.

              In today’s context nobody but RW was the only candidate to take the challenge. He did it and all simple issues that GOTA as a legitimate president failed were reset within few weeks to 6 months. Period.

              tbc

              • 2
                0

                cont.
                .
                The mother is admitted in the intensive care unit and the priority is to save her life from death..

                . However, the surgery room, attending doctors, surgeons, nurses and other authorities and all the other staff are not in unity, how to save the life of the patient?
                Can we ever come close to keep mother alive let alone saving her life ? if our priorities are out of the average mindset, no real change would work for the benefit of very nation.

                Likewise, taking steps on hanging Rajapaksas and his men could work after saving the nation from starving. Prevailing law and order and fake judiciary would not do anything to put them jail by accussing them, because even they are highly corrupted. Gampaha Land related investigation made it very clear to the world. If not KAPUTU KAK, who was the owner of that property ?
                .
                it needs to bring law harsher law refORMs. and it is connected with genuine court processes. Knowing judiciary is fake so as any other systems in this country.
                Experts say, not just law and order but all other fields are over corrupted in this country. Now corruption-scale for even ETHIOPPIANS are used to take srilanka. That is what maharaja aka RAJAAPKSEHS achieved for the modaya led nation.

  • 6
    1

    Wijeyadasa Rajapakshe being the Minister of Justice is sure proof Sri Lanka

    • 10
      0

      Wijeyadasa Rajapakshe being the Minister of Justice is sure proof Sri Lanka has hit rock bottom as a nation. By abusing his legal profession, he has emerged in recent years as the country’s leading go-to guy for all kinds of shady characters trying to game the system. He has been the backroom deal maker for the Rajapaksas while they were in or out of power. It was a master stroke by the Rajapaksas manipulating Maithri to appoint Wijedasa as the justice minister of the Yahapalanaya government. His first act on being appointed was to declare Gota innocent of any wrongdoing in the Avant Garde racket. Now he is playing the same ‘fixer’ role for Ranil. Sri Lanka is surely an Orwellian dystopia when the justice minister is spewing doublespeak. This smiling glib talker is one of the most disgusting hypocrites in the dirty world of Sri Lankan politics today.

  • 7
    0

    There is a necessity either for a new act, which I will not call Anti-Terrorism Bill, or even have the word Terrorism. As the Minister himself has stated ( by the way, this Minister changes his position and his views on which side of the table he is sitting on) that the bill presented by him is to safeguard the civilian lives, if so then the title of the bill should be called Civilian Protection Bill. Once this change is made there will be no way in which clauses facilitating “State Terrorism” will be possible.

    Rajapakshe is a minister who danced like a puppet out of control when he was not a minister and once he became a minister, for which he was dancing, changed and became or at least showed he is a decent democratic minister.

    I think he has to learn from Ali Sabry, who was a hundred times better than this dancer. Rajapakshe should sit at the feet of Ali Sabry and learn what is democracy and what are the clauses in the constitution that protects the citizens of this country. When Wijedasa Rajapakshe presents a bill and the Supreme Court finds the most number of violations against the clauses in the constitution clearly shows he is not suitable to be the Minister of Justice.

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