By Laksiri Fernando –

Dr. Laksiri Fernando

“In societies where there is much public corruption there will usually be much private corruption; they tend to go together.” – Robert Neild

If one maintains that, as a matter of principle, all corruption cases should be investigated equally, indiscriminately and without delay, it would be very difficult to argue against such a moral high ground. But the question is how such a moral principle is applied in transforming a society, after a long period of major aberrations, without allowing that society to fall back to the old situation.
In the case of Sri Lanka, one accusation is that the current investigations are politically motivated which would give credence to the old regime. There is some truth in this accusation, considering that there are political obstacles in investigating the present corruption allegations, for example, the Bond issue. This is only one among others. On the other hand, there is also the possibility that the remnants of the old regime highlighting or exaggerating the current allegations on corruption, to purposely distract attention from the blatant previous cases.

Independence

This is why the independence of all anti-corruption institutions are important without political interference or agendas, not to speak only of the main one – the Commission to Investigate Allegations of Bribery or Corruption (CIABOC). The link between the Prime Minister’s office and the FCID in this case is questionable, while the latter is now being declared as legitimate. It is also a peculiar addition to this plethora of organizations with a long name called the ‘Presidential Commission of Inquiry to Investigate and Inquire into Serious Acts of Fraud, Corruption as Abuse of Power, State Resources, and Privileges (PRESIFAC).’ There is no doubt that ‘too many cooks can spoil the soup.’ The mandate of the PRESIFAC is also broad, yet focused on the 2010-2015 period, and have obtained over 900 complains without much progress in the investigations.

A major mistake that the present government committed after they were mandated to eradicate corruption, fraud or abuse of power was their failure (perhaps intentionally) to set-out standards and ethics for themselves where corruption and abuse could be curtailed. If this was done initially, then the long titled PRESIFAC could have handled the ongoing issues while all others being left to the CIABOC. In the case of both, the independence of such commissions outlined in the 19th Amendment was/is important whatever the weaknesses of that amendment. More important might be the practice of such an independence, more than what is written in the statutes.

It is intriguing to note that during the past period, for one reason or the other, the position of the Director General of CIABOC has come to a major prominence, rather than the Commission. According to its own website “The Commission consist of three members, two of whom shall be retired Judges of the Supreme Court or of the Court of Appeal and one of whom shall be a  person with wide experience relating to the investigation of crime and law enforcement.” Thus the Director General is not part of the Commission, although that position is undoubtedly important for its proper functioning and performance. The people hardly ever heard about the actual members of the Commission. The low visibility of such an independent commission might be important, but not to overwhelmed by an activist DG like what we had until recently. The close associates had called her ‘Chandi Shyama’!

Activism or Professionalism?

It appears that there has been something fundamentally wrong in the way the Commission has functioned. I would say the reason has been the lack of professionalism. Activism is no substitute for professionalism, particularly in the case of independent commissions. It may be true that the President had slipped his tongue (he actually did), here and there, when referring to the anti-corruption institutions, but he is largely correct in the case of the CIABOC. His words may be wrong or controversial, but his main concerns were valid. As a matter of fact, the independence of a commission could erode within, as well as without.

Bribery has been an offence punishable under the Penal Code since 1883. The Bribery Act has been in operation since 1954 with the objective of curtailing the menace in public transactions after independence. In 1958, the Bribery Commissioner and the Bribery Commissioner’s Department were established to further these objectives. They were under the Ministry of Justice, nevertheless with (relative) professional independence. It was in 1994 that the scope became expanded to incorporate corruption as well, with the establishment of the present CIABOC, to investigate ‘allegations against bribery or corruption.’ While bribery is more specific, corruption by definition is broad and at times controversial. Investigating ‘allegations’ could be more controversial.
While a definition of corruption could go as ‘the abuse of public power for private benefit or profit’ it could include bribery, fraud, nepotism, jobbery, tax evasion, abusive grant of contracts, patronage of benefits, obtaining commissions etc. In short it means breaking of the rules, be they written or implicit code of ethics in a society. The societies, or sections of people in societies, also differ in respect of their understanding of various elements that constitute corruption.

When the CIABOC officials nabbed three customs officers taking bribes amounting to Rs. 125 million in October 2015 it was a clear cut case. Nevertheless, the indictments have not proceeded to convictions yet. In contrast, charging the ‘deals’ between the Avant Garde and the Navy on corruption charges may be quite hazy, however scandalous those from a public point of view. Taking three former navy commanders to courts on this matter as suspects without his knowledge was what particularly angered the President in his speech on the 12th October. This was very much similar to what was done to the former army commander under the previous political dispensation.

If someone says that these events have no impact on the defence matters whatsoever in the country, that person could be living in an ivory tower. The difference is between ivory tower idealism and political realism with evolving moral principles. There also can be hypocrisy. If someone ask the question that how many people declare their professional or other incomes and pay income taxes, the answer may be quite dismal. That is also corruption. There is lot to change in our society in respect of corruption from top to bottom.

Sri Lanka undoubtedly is in a dilemma. During the war period and even thereafter under the previous political dispensation, there must have been several arms and military type deals initiated bordering on corruption and venality. Most of the personnel must have been thinking they were doing the ‘right thing’ while stealthily benefitting out of them through massive commissions. This is also part of capitalism or greed for money or wealth in the present human circumstances. These have to be stopped, high standards should be setup, and the blatant violators should be punished. However, these should not be done to humiliate the security personnel, or in a callous manner, that could degrade their role in defending the country. If a person is responsible personally, the law should apply equally to all. However, if a person is involved in his or her official capacity, as in the Avant Garde case, the best method might be to deal with the matter within the defence establishment at least initially.

Selection of Cases

The matters of corruption or even bribery, in my opinion, cannot be handled in an activist manner. However, the activists could publicly expose the culprits, if the allegations are credible. There is nothing wrong however in allowing the interested parties, the whistle blowers or the activist organizations to make complains, for example, to the CIABOC or FCID. As far as I understand, there have been three main organizations which have made complains before the CIABOC or the FCID. They are the Anti-Corruption Front (ACF), the Voice Against Corruption Movement (VACM) and the Transparency International (SL).

It is reported that the ACF has complained about 225 cases, but according to its Advisor, Keerthi Tennakoon (Colombo Telegraph, 23 October), only three cases have been satisfactorily investigated! This is during the last 21 months. Tennakoon also has come up with the idea that the Commission apparently neglected some of the political or ground realities in particularly dealing with the politicians or the defence personnel. This is exactly what the President has been talking about although his open denunciations can be controversial. There are indications that perhaps some of the factions or individuals within the government have been manipulating the corruption investigations seemingly for their political advantage. But the unfortunate fact seems to be that these political manoeuvers have been boomeranging on the whole government, the SLFP and the UNP alike.

If the case load before the CIABOC and the FCID is around 400 cases, there is undoubtedly a need to prioritize and select what is feasible without defusing efforts on all the cases. This should not be done on a political basis but based on the gravity and magnitude of the corruption charges and the evidence available. There can be a tendency when the activists make complains or the cases are selected on a political basis that they would lack credibility or at least reliable evidence.

When the new Presidential Commission (PRESIFAC) was setup with a broad mandate, it was apparent that there were no clear legal provisions available to prosecute such a range of violations like ‘abuse of power, state resources and privileges.’ That is the very reason to set up a new one, but the creation itself was a contradiction unless it was aimed at the future. New laws cannot apply to the past. This does not mean some of the culprits cannot be nabbed even under the existing or previous laws. But that has to be done without political motives. The best thing the government could have done is to use the PRESIFAC to prevent corruption and abuse of its own people and allow mainly the CIABOC to investigate past practices or any other coming under its mandate. Even in the case of corruption, ‘example is better than precept.’ Tennakoon again has given some dramatic description of what is happening at the PRESIFAC inquiries.

“Those who are summoned before the PRESIFAC, have made it a platform to give speeches and self-promotion. If you look at TV news, you can see these people, alleged of serious white collar crime, beaming to the cameras and talk about how they are targeted unjustly. They also make this an opportunity to comment on the current political context but they say nothing about the allegations levelled against them and no one asks them that either.”

Priorities and Approach

These realities might not be palpable to the ‘true believers.’ It may also be true that the President’s open remarks also must have demoralized many who work in the field of corruption. However, these are the realities one has to face. If not for the open remarks, though unfortunate, no proper discussion on the matter or no proper adjustment of priorities would take place. Corruption (or any other abuse) is not a matter that could be punished through vigilante justice. The people who make allegations about corruption may believe that ‘this is the truth and nothing but the truth.’ But this is not the case particularly in respect of ‘abuse of power, abuse of state resource and privileges.’

The reason is that corruption and abuse of power are deep seated. The corruption in the public sphere is linked to the corruption in the private sphere. It is not the aberration in our society, but unfortunately the norm. The thirty years of war has exacerbated the situation. This reminds me of what the Swedish social scientist, Gunnar Myrdal, had told Robert Neild some years back when the latter was planning to investigate corruption (See ‘Public Corruption’ by Robert Neild, Anthem Press, 2002). Myrdal had told Neild to turn the usual approach on its head and consider corruption as the norm and not the exception.

To change the norm, an overall political approach has to be taken without picking cases here and there. Even when the cases are selected, those should be on the basis of impartiality considering the gravity and magnitude and also without discriminating the present or the past. The gravity of the issue should be explained to the people without giving the impression that political victimization is the object. Corruption is a liability for development and also democracy.

There are also the questions of priority in general terms. What are key priorities that the people want from this government? Already 21 months have elapsed. As far as I can see, ‘economic resurrection’ and ‘some resolution to the national question’ are pressing needs. Eliminating corruption and abuse of power from the political system is also about changing the state structures and taking the present democratic system to a higher level. Here comes the importance of a new constitution agreeable to various sections and parties yet on an enlightened basis. No one would ask to relegate the corruption investigations into the backburner.

As I have said before, the Presidential Commission (PRESIFAC) perhaps could look into the prevention and curtailment of abuse of power, resources and privileges here and now while the CIABOC focusing on its proper mandate without mixing up priorities or professionalism with politics or activism. The most important task would be to bring a New Constitution as a framework with a future vision for a new and rejuvenated Sri Lanka. It could be an anti-corruption constitution. The corruption investigations should continue on the basis of gravity and magnitude of the offences, also considering the availability of evidence.