Colombo Telegraph

Investigating Corruption; Fairness & Justice Must Be Ensured

By R.M.B Senanayake

R.M.B. Senanayake

The JVP deserves the gratitude of the people for taking up matters with regard to the corruption indulged in by the Ministers of the previous regime before the Bribery & Corruption Commission. But it is unlikely that the Bribery Commission can go into the allegations since they lack the necessary technical staff to investigate such allegations. Several of the allegations refer to economic crimes. The Petroleum Corporation is accused of importing inferior petrol. They are accused of entering into hedging transactions which caused enormous losses which had to be settled in foreign currency. There are allegations of corruption in the construction of the Expressways at excessive costs. The EPF is alleged to have bought shares on the Stock Market at excessive prices which were not worth. All these require a sound knowledge of economics and the ability to understand markets and not only spot markets but also forward markets and options. The policemen or lawyers from the Attorney Generals Department do not understand or have a perspective on such situations and matters.

In the UK they set up a Serious Fraud office which deals with economic crimes and the office uses the services of professional persons including economists, accountants and bankers who analyze market data and advise the prosecutors. Can we do without such professionals to handle these corruption allegations? There is also the mitigating fact that the original decisions cannot be judged from hindsight. They have to be judged in the circumstances given the knowledge of facts and circumstances then available. They cannot be judged from hindsight. It is necessary also to consider the prevailing risks and uncertainties which prevailed when the original decision was taken.

The investigation of Economic and Financial crimes require some sophistication and expertise available with Accountants, bankers, technical specialists and experts in the particular field who are familiar with the market conditions, the risks and the uncertainties which prevailed at the time of the alleged wrong or corrupt decision. So the services of professionals in the relevant field have to be co-opted and relevant data analyzed. Some of our Commissions of Inquiry in the past failed to take these factors into account and came to unfair decisions. I myself suffered from an unfair stricture from the Commission of Inquiry into Air Ceylon under the late Presidents Counsel Bunty De Zoysa. I was interdicted by the new Board of Directors. I had to seek permission from the Attorney General to challenge it in the Supreme Court since public officers require such approval before filing a case. I submitted my representations giving the reasons for my proposed case The Attorney General went into my representations and ordered my re-instatement to the Board of Directors who had interdicted me on the Report of the Commission.

More recently someone took the Central Bank to the Supreme Court for investing the Foreign Exchange Reserve in Greek bonds. But the weakness of the Greek bonds was not known at the time of the investment. In fact the Greek Government gained entry to the EU on false statistics dressed up by a leading Investment Bank in USA. The Supreme Court rightly did not fault the Central Bank. Fortunately in a court both sides are represented. But at proceedings of Commissions of Inquiry only those who make the accusations are represented. To imagine that a Bribery Commission or a Commission of Inquiry unassisted by professionals could decide on economic crimes is to risk unjust judgments and discourage persons in office from taking decisions in the future where risk and uncertainty is high. Public officials will then be discouraged from taking decisions and inclined to avoid or defer decisions for the loss in such circumstances will be less apparent. Errors of omission will then prevail which could cause even greater loss or harm in situations where the future is uncertain.

Therefore it is necessary to staff any Commission with persons who are competent and have experience in the particular field. The Commission should call for representations from the public. Next such representations have to be investigated by police officers but under the supervision of professionals in the particular field. They should also be assisted by technical experts perhaps drawn from the Auditor Generals Department. So the JVP representations to the Bribery & Corruption Commission call for the appointment of a Presidential Commission of Inquiry. May be more than one Commission may be required owing to the numerous allegations. As a first step in the inquiry into allegations of corruption It is necessary to appoint a fact finding Presidential Commission of Inquiry which will call for petitions from the public which their staff can investigate and co-opt the necessary knowledgeable professionals. The Commission could make its findings public and recommend cases where there is justification for criminal prosecutions. Using policemen or lawyers from the Attorney General’s Department will not be sufficient. Presidents like President JR Jayewardene set up Commissions of Inquiry as the first step. Maybe more than one Commission is required depending on the number and magnitude of the corruption allegations. Let us ensure justice not revenge.

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