27 September, 2020

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Mixed-Up Priorities Of Anti-Corruption Investigations

By Laksiri Fernando

Dr. 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.dilrukshi-wickramasinghe

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.

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Latest comments

  • 4
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    Prof. Laksiri,

    It is the imperative of the times that we fight a ‘war’ against bribery and corruption at all levels of society. Bribery and corruption are in combination the most lucrative industry in the country. Far more lucrative than the narcotics trade. From schools to universities; office boys to the presidency; soldiers to the Genelals; office peons to the Ministerial Secretaries; policemen on the beat to the top ranksin the police; hospital orderlies to the doctors; MPs to the Ministers and wherever else we look, bribery and corruption are rampant. They are gutting our society and timbre as a people.

    It is a no quarters given war that has to be fought, regardless of the conscience and sensitivities of our President.

    Where there is reasonable proof , the individuals should be charged. Whether the offenses are major or minor, the accused should be charged. Extensive leeway should be given to the anti-bribery and anti corruption agencies to do their job to the best of their abilities . Special courts have to be established to deal with bribery and corruption. Bribery and corruption, regardless of the scale, should be nonbailable offences. Fast track the cases, instead. No one-high or low-should exempt from the reach of law and its enforcement. This country should regain its conscience, if we are to progress. Every citizen should feel guilty about accepting even a cent by way of bribery and corruption.

    This is possibly the one instance where I disagree with you. We scaled Himalayan heights in bribery, corruption and nepotism during Mahinda Rajapakse rule and paid / are paying a heavy price yet. We elected this government to clear the mess. I do not see the zeal required to accomplish this mission.

    The President himself is shielding wrong doers in his family from the reach of law and smothering the efforts to catch the killer sharks, with his platitudes.

    Civil society should demand that war against bribery and corruption- I should and nepotism- be waged with quadruple vigor now. Justice must not only be done, but seen done. It should be palpable to every teenage and adult citizen.

    Dr.Rajasingham Narendran

    • 3
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      Prof. Laksiri, you are quite right about mixed up priorities, which is why Lanka today needs a movement like the anti-taxes Boston Tea Party, against IMF’s and Corrupt Ravi K’s VAT taxes.

      As long as the corrupt politician of Sri Lanka have tax free cars and the Central Bank manipulates currency and indulges in Bond Scams to fund Corrupt politicians and their parties, people should not pay taxes.

      Ranil Wickramasinghe loves to talk of “Parliamentary Privileges” – i.e the privilege and entitlement to loot the people and country and spread corruption so that it trickles down to every corner of the country, from the Parliament of corrupt morons.

      Sri Lankans, one and all, should REFUSE to pay taxes to the Ayahapalanaya government of Sri Lanka run by Ranil-Sira Jarapalanaya which is protecting the corrupt and criminal Mahinda Rajapaksa family. Politicians of Sri Lanka are a caste of parasites and no one should pay taxes as long as the corruption continues.

  • 4
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    Dr. Laksiri Fernando

    RE: Mixed-Up Priorities Of Anti-Corruption Investigations

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

    Yes. indeed!

    The President, Gon Sirisena Gamarala must have taken billions from Gotabaya Rajapaksa and Mahinda Rajapaksda, to protect the criminals, crooks and killers.

    The President, Gon Sirisena Gamarala, became a traitor to the people who wanted Good Governance.

    What did they get, Governance by Traitors to the People.

    They should be given the standards punishment for Traitors.

  • 3
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    The issue at hand is only because some of the politicians who are active today have charges of bribery and corruption against them. The leaders of the parties should not have given them seats in the Parliament until their inquiries are over. All the political parties other than TNA have charges against them. By appointing these accused politicians before they were cleared of any charges is the fundamental problem we have in Sri Lanka. By appointing these charged politicians to the Parliament the leaders have to protect them by accusing various commissions. The new constitution should setup a special court for politicians bribery and corruption cases and there should be a ban of these politicians sitting in the Parliament until their cases are heard.

  • 1
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    “However, if a person is involved in his or her official capacity, as in the Avant Garde case,”

    how come the navy commanders worked for a private company in their official capacity?When they are in the navy they can’t work for a private company.

  • 1
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    “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.”

    Did the author and the president protest when fonseka was sent to prison and had to sleep on a mat on the floor and go to the toilet with other prisoners?

  • 0
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    “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!”

    but they were quick to go after fowzie,a sirisena loyalist,for a loss of 1.8m rupees for using a official vehicle for private use.I wonder how much the country has lost on the balance 222 cases complained by ACF,not investigated

  • 0
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    The so-called ‘Movement of Justice’ , the ‘Citizen Movement’ and ‘The
    anti -Corruptions Caucus’ are totally silent of CB Bond Scam and inside trading of Govt. Bonds led by UNP-Leader.

    The writer is Christen Democracies are politically allied with the UNP CBK and MS to cover-up Bond Scam involved by that UNP Neo-Liberal Capitalism of that an introduce of New ventures Capital.

    This is part and parcel Economy of Neo-Colonialism of USA newly Experiment in Sri lanka?

    This not case of corruption ONLY, but is which created New Capital Market for Tamil Businessmen out of that who are selling our PEOPLE hard Labour and oversees Earning of One Millions working out of Island the result that few Tamil Business-man become RICH++++=
    Is this fair play of Capitalism or Neo-colonialism of an introduced by UNP -leader?

    This what we want and expected CHANGE from 2015 January 9th?

    The very UNP-Ranil W..@@@@ CBK and MS that Created pile of Country Debt in the heavy burden to Public for generation to come to pay their hard earnings.

    Is this New type of ” Good Governances”? advocated by Writer?

    Majority Elites are playing fool with People of Sri Lankan!

    They justified the roots of corruptions by their deeds of which the line of Political Ideology of Trotskyism.

  • 0
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    “The corruption investigations should continue on the basis of gravity and magnitude of the offences, also considering the availability of evidence.”
    By saying so, the article will be complete if this updated list of concurrent allegations that will definitely kindle the mind of CT readers?:[Edited out]

  • 1
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    Dr.Laksiri Fernando: You said: ” If someone says that these events have no impact on the defense matters whatsoever in the country, that person could be living in an ivory tower. the difference is between ivory tower of idealism and political realism with evolving moral principles”.

    I disagree and according to your definition I am living in “an ivory tower”. NO. I live in this planet Earth and both feet on the ground. In making that “definition” you have not gone into the subject of the case filed against them. If you go through the facts of the case, you will find, that all those three ex Navy personnel, made decisions and issued directives, in that the Navy LOST and substantial quantum of money to be received from Avant Garde. One of them reduced the percentage of profit that was to be paid by this company, while the next still reduced that established rate and made it with “retrospective” effect going back to one year, and still the next one again reduced that rate still further. Then after retirement all of them joined this Avant Garde as consultants and direct employees. I have no concern of them getting employment anywhere; but how and what manner they have been looked after seems connected directly with the decisions they made while in service and in authoritative positions. That is how even GR, the ex Defense Secretary is charged in this case. That brought about a colossal LOSS to the Navy. One of the “Defendants” has already scooted off from the country while in active service at the Ministry of Defense. What have we done with that staff’s absence from service?

    Now how does this case bring about an “Impact on the defense matters in the country” (as you say above)? What happens in REALITY is MR & Co. and certain stooges who served that regime are still “surviving” in high positions and indirectly supporting on the claim of this slogan of “War Hero”. They claim that if any action is taken against those Armed Forces personnel, there will be backlash by the very Armed Forces and the Public. This FEAR PSYCHOSIS has been spread in a very calculated manner and manipulated in a very subtle way to “DISTURB” the highest executive, the President. The climax of that carefully “Engineered” plan came to light with this uncalled for remark by the President at a “wrong place”.Then as regards those in remand custody for over 16 months (again Army Intelligence personnel)did the President consider WHY they are kept like that. According to Investigative Authorities, the requested and required “information” has not been forthcoming from the very Intelligence Command, in spite of there being a directive issued by the courts. In a way the President, as the Commander-in-Chief is also answerable for that GROSS FAILURE. Why he (the President) did not PULL UP that unit for that gross negligence. The REALITY is The PEOPLE in the country have not been “INFORMED” and made “KNOWLEDGEABLE” on the facts of these cases and that “Dismal Failure” on the part of the Government machinery feeds the “Trouble Makers”, including those “Disguised” kept in the lap of those in authority in the Government. How would you explain when these “retired Armed Forces personnel appear in courts “displaying” all their medals attached on to normal civilian clothes. What do they expect from the Courts and the People? Are they permitted to do that? So to make it brief, “MR & CO” do the “Political Upheaval” while the “Security Personnel, both in service and retired” who work hard on the common platform and slogan “BRING BACK MAHINDA” is the REALITY that is not seen by those who write these articles from Ivory Towers; but very clear to us who live on this earth.

  • 0
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    Some French Economist said Capitalism works only when there is not much gap between the haves and have nots..

    Yahapalana PM Batalanada Ranil wants to do not only Capitalism but transform us in to a Secular , Federal Nation with Anglican values where there is no corruption and nepotism.

    What a Noble goal..

    Is he real and is he capable?..

    I just did a little survey.. My Colombo mates cough up min. LKR 450 for a dram of Indian Whiskey..

    And it it can go up to LKR 650 depending on where the Watering Hole is.

    Our Samurdhi recipients in contrast, get only about LKR 150 a day..

    And most of the 70 % of the inhabitant population falls in to that category after Yahapalana PM tried to chase away the Chinese and hand over the development work to Capitalists..

    But Yahapalana PM has made all PT shareholders multi multi Millionaires in just 12 months.

    That is the real time haves and have nots in our 2500 year old Nation.

    I always wondered what this CIA BOC stands for.

    Besides Yahapalana PM , even his Treasurer is helping his mates to do bracket keep in to PT Shareholder class.

    I understand 6 Prados became Megapolis Tractors in BOL documents.

    All MPs who chip in to help the Yahapalana PM got free car permits at the expense of the PAYE inhabitants.

    The Colombo residents who are supposed to be the real UNP Elite and , Anglican value holders getting the biggest permits.

    Really there is no “mix up” there .

    Yahaplana Rulers have actually prioritised their responsibilities..

    Although money was not an issue, Yahapalana Rulers put in a lot of time and effort to get to where they are ..

    The way things are panning out , will they get another turn at the Car Permit lottery and the CB Casino in particular, beside the Customs and other Public Piggy Banks.

    • 0
      0

      KASmaalam KA Sumanasekera

      “Our Samurdhi recipients in contrast, get only about LKR 150 a day..”

      Okay, what happened to all those sacks of rice imported from moon? How much did the Samurthi recipients receive before Jan 2015?

      Why can’t you have a quiet word with Basil who was supposed to have made billions to be generous towards those poor 70% Dalits?

      “Although money was not an issue, Yahapalana Rulers put in a lot of time and effort to get to where they are .. “

      Of course money is not an issue for those crooks who stole every cents from treasury.

  • 0
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    Mr. Laksiri! (I purposely omitted the prefix Dr.) Your doctorate is in question! Is it a doctored one like Mervyn Silva’s Phd? Please stop your attempts to whitewash the UNP and Yahapalanists! Just learn to call a spade a spade. That’s what learned people do throughout the world.

    • 0
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      Siribiris, your username may be 100% appropriate to your behaviour.

      How would you the like man see about his doctorate ? He has worked as a professor – before being moved ot Ausi. Like the virulent men of Join Opposition- almost everyone of your kind seems ot have turn out to support anti-Unp. Please go and see in a mirror who you are, and get back to add your thoughts could help us all.

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