Good governance activist, Chandra Jayaratne has reminded Chairman of the Parliamentary Committee on Public Enterprises (COPE), Sunil Handunneththi of the importance refreshing his memory along with the members of COPE on the ‘the General Principles of Accountability of an Oversight Committee of Parliament.’
In a letter addressed to Handunneththi on July 6, Jayaratne reiterated the importance for him and the members of the committee to ‘bear in mind’ that the Sri Lankan Legislative Enactments dealing with Bribery and Corruption, clearly defines in Section 70 of such enactment, what constitutes Corruption in relation to any public servant. Jayaratne also provided a copy of the enactment for the benefit of Handunnetti and his committee members.
“You will note from this provision that, where any public servant, with intent, to cause wrongful or unlawful loss to the Government, or to confer a wrongful or unlawful benefit/favour/advantage on himself, or any person, with knowledge that a loss will be caused to any person or the government , does any act which he is empowered to do or induces any other public servant to perform or refrain from performing that any act or uses information coming to his knowledge or participates in an making of any decision or induces any other person, directly or indirectly to perform or refrain from performing any act, shall be guilty of the offense of corruption,” he said in the letter which was CC’d to the President, Prime Minister, Speaker, Leader of the House, Leader of the Oppositions, Chief Opposition Whip and the Auditor General.
The letter also comes amidst allegations that UNP MPs who were members of the committee were trying to jeopardize action against ex-Governor of Central Bank Arjuna Mahendran, citing that the controversial Treasury bond transaction that took place in 2015 and 2016 which resulted in the State losing billions of rupees was not Mahendran’s fault.
The full text of Chandra Jayaratne’s letter is below;
6th July 2016 Registered Post
Sunil Handunnetti Esq.
Committee on Public Enterprises,
Parliament of Sri Lanka,
Principles of Accountability; Parliamentary Oversight Committees
I submit this letter to you, as you and other members of the Parliamentary Oversight Committee –
“ Committee on Public Enterprises” -, address the challenging task of developing and presenting, an independent, professional, unbiased and value adding report to Parliament, on the Bond Issues made by the Public Debt Department of the Central Bank in 2015 and 2016, including the controversial issues that have led to significant public criticism on account of ;
- Purported violation of expected best practices of due process, good governance, transparency and professionalism , in a back drop of these bond issues being tainted, possibly by conflicts of interest, related party transactions, market manipulations and insider information;
- The State purportedly incurring significant future higher than optimum market interest payment costs over extended period of years;
- The beneficiary members of state run Employees Provident Fund, Employees Trust Fund, Savings and Insurance entities may have lost the completive market based best returns having invested via the secondary market instead of the primary markets;
- A limited number of connected parties may have benefitted significantly by way of unjust enrichment
In the above context, it may be best that you and the Committee members refresh your memory with the General Principles of Accountability of an Oversight Committee of Parliament. Towards this task I enclose some extracts from an OECD/DAC Governance network and South African Parliament dealing with these Principles of Accountability, especially those highlighted and underlines. (Refer attachment)
You and your members colleagues should also bear in mind that Sri Lankan Legislative Enactments dealing with Bribery and Corruption, clearly defines in Section 70 of such enactment, what constitutes Corruption in relation to any public servant – (Please refer attachment). You will note from this provision that, where any public servant, with intent, to cause wrongful or unlawful loss to the Government, or to confer a wrongful or unlawful benefit/favour/advantage on himself, or any person, with knowledge that a loss will be caused to any person or the government , does any act which he is empowered to do or induces any other public servant to perform or refrain from performing that any act or uses information coming to his knowledge or participates in an making of any decision or induces any other person, directly or indirectly to perform or refrain from performing any act, shall be guilty of the offense of corruption.
I would be most grateful if copies of this note can kindly be placed before the Committee and copies thereof provided to all members, as the Committee progresses its inquiries connected with the examination of the Bond issues.
Leader of the House
Leader of the Oppositions
Chief Opposition Whip
Principles for parliamentary assistance – OECD/DAC Network on Governance (EXTRACTS)
Parliaments perform a vital role in any system of representative democracy, but they play an especially important role in emerging democracies – not only in improving the quality of governance by ensuring transparency and accountability, but also in shaping the public’s expectations and attitudes to democracy.
Parliaments are the single most important institution in overseeing government activity, scrutinising legislation and representing the public’s concerns to those in power. Their performance in holding government to account and engaging with voters will help to establish the norms and values in the early years of a democratic culture.
Parliaments and domestic accountability
The overarching purpose of parliamentary oversight is to hold government to account. While governments are directly accountable to voters at elections, in between elections it is the duty of parliamentarians to hold ministers and their departments to account on the public’s behalf.
The Inter-Parliamentary Union’s Tools for Parliamentary Oversight sets out four key oversight roles:
•Transparency and openness. Parliament should shed light on the operations of government. It provides a public arena in which government’s policies and actions are debated, exposed to scrutiny and held up to public opinion.
Delivery. Parliamentary oversight should test whether the government’s policies have been implemented, and whether they are having the desired impact.
•Value for money. Parliament needs to approve and scrutinise government spending. It should highlight waste within publicly-funded services, and aim to improve the economy, efficiency and effectiveness of government expenditure.
• Tackling corruption and misuse of power. Parliament should protect the rights of citizens by detecting and preventing abuse of power, arbitrary behaviour and illegal or unconstitutional conduct by government.
In short, a parliament’s role is to provide a check on the activity of government. The role might be thought of as providing “government by explanation”. That is, highlighting issues of concern and ensuring that government is able to justify its actions to the public, or where that policy is deficient, forcing a change. The tools available to MPs to achieve these objectives vary from parliament to parliament, but they tend to be pursued through three main routes, namely via the plenary session (through questions and debates), the committee system (through investigations) or in conjunction with outside agencies that report to parliament.
It is in this last area where parliaments have the potential to be most effective in strengthening systems of domestic accountability. Parliaments derive much of their authority from the fact that a number of accountability institutions usually report to them. These range from the supreme audit institution, the ombudsman and the electoral commission, through to utility regulators, inspectorates and agencies. Such institutions provide a wealth of information on the performance of government in specific policy areas, and provide the evidence on which parliament can hold ministers, and ministries, to account.
In other words, parliaments should sit at the centre of a web of domestic accountability, liaising with the range of independent experts and institutions, absorbing the detail of their investigations and drawing out the salient political points for which the executive should be held to account. Parliaments are therefore potentially vital allies for donor agencies in improving domestic accountability. Yet in many parts of the world legislatures have fallen far short of public (and donor) expectations. In emerging democracies, parliamentsare frequently ineffective in the face of a powerful executive, and have little public legitimacy and authority.
Parliament’s Oversight and Accountability Model- South Africa (Extracts)
The true test of democracy is the extent to which Parliament can ensure that government remains answerable to the people. This is done by maintaining constant oversight (monitoring) of government’s actions.
Parliament and its Committees have powers to summon any person or institution to give evidence or produce documents, and to report to them.
The Constitution states that Parliament has the power to conduct oversight of all organs of state, including those at provincial and local government level.
WHAT IS OVERSIGHT?
Oversight is a function granted by the Constitution to Parliament to monitor and oversee government actions.
When exercising oversight, Parliament focuses on the following areas:
- implementation of laws
- application of budgets
- strict observance of laws of Parliament and the Constitution
- effective management of government departments.
WHY IS PARLIAMENT’S OVERSIGHT ROLE IMPORTANT?
By overseeing the actions of government, Parliament is able to ensure that service delivery takes place, so that all citizens can live a better quality life.
PARLIAMENT EXERCISES OVERSIGHT FOR THE FOLLOWING REASONS:
- to detect and prevent abuse
- to prevent illegal and unconstitutional conduct on the part of the government
- to protect the rights and liberties of citizens
- to hold the government answerable for how taxpayers’ money is spent
- to make government operations more transparent and increase public trust in the government
THE ROLE OF PARLIAMENTARY COMMITTEES
Parliamentary committees are established as instruments of the Houses in terms of the Constitution to facilitate oversight and monitor the government.
These committees are the “engine rooms” of Parliament’s oversight and legislative work.
Committees scrutinise legislation, oversee government action, and interact with the public.
One of the most important aspects of the oversight function is the consideration by committees of annual reports of organs of State, and reports of the Auditor-General.
Depending on the purpose of the oversight, the Committee will either request a briefing from the organ of State or visit it for fact-finding.
OFFENCES OTHER THAN BRIBERY
70. Any public servant who, with intent, to cause wrongful or unlawful loss to the Government, or to confer a wrongful or unlawful benefit, favour or advantage on himself or any person, or with knowledge, that any wrongful or unlawful loss will be caused to any person or to the Government, or that any wrongful or unlawful benefit, favour or advantage will be conferred on any person
(a) does, or forbears to do, any act, which he is empowered to do by virtue of his office as a public servant;
(b)induces any other public servant to perform, or refrain from performing, any act, which such other public servant is empowered to do by virtue of his office as a public servant;
(c)uses any information coming to his knowledge by virtue of his office as a public servant;
(d)participates in the making of any decision by virtue of his office as a public servant;
(e)induces any other person, by the use, whether directly or indirectly, of his office as such public servant to perform, or refrain from performing, any act,
shall be guilty of the offence of corruption and shall upon summary trial and conviction by a Magistrate be liable to imprisonment for a term not exceeding ten years or to a fine not exceeding one hundred thousand rupees or to both such imprisonment and fine.