By Basil Fernando –

Basil Fernando

Preliminary Remarks

Encouraged by the Presidential address delivered as a Christmas message to the people of Sri Lanka by the Hon. Anura Kumara Dissanayake, the President of Sri Lanka, the Asian Human Rights Commission (AHRC) wishes to reiterate its earlier appeal regarding the urgent need for fundamental reforms in Sri Lanka’s justice system. The AHRC appreciates the clarity with which the Hon. President has understood and expressed the gravity of the situation, particularly the complete collapse of the justice system in recent decades. If left unaddressed, this collapse could render many of the current efforts futile, despite the clear mandate given by the people through the recent Presidential and Parliamentary elections.

The AHRC has consistently maintained the view that the changes made after 1978 led to the collapse of Sri Lanka’s entire justice system. As early as 1990, the AHRC described the situation in Sri Lanka as a severe breakdown of the rule of law. Today, a few decades later, the situation has worsened. As the Hon. President rightly noted, the people are fully aware of these issues, and thus, merely reiterating the problem is no longer sufficient. What is needed now are concrete strategies to address the issue, involving both short-term, medium-term, and long-term measures.

In our first letter to the Hon. President, we emphasized three key issues. The first was the restoration of the hearing of trials in High Courts, particularly for serious crimes. The practice of postponing each case indefinitely after an indictment has been filed has become entrenched over the years. As long as this delay continues, the trial process will remain a mockery. When a trial drags on for a decade—often the minimum duration—the process of criminal justice loses its value. What should be a fair trial becomes an empty exercise, a mere façade of justice. As the Hon. President has repeatedly stated, delayed justice is denied justice. However, in Sri Lanka, the denial of justice through delay has become a strategic tactic to maintain the illusion of a functioning criminal justice system, while in reality, it serves the exact opposite function. This undermines the very idea of a criminal trial, particularly for serious crimes.

Addressing crime is not merely about crime prevention; it is a fundamental aspect of ensuring a functioning state. The erosion of the criminal justice system in Sri Lanka has directly contributed to the weakening of the state itself, a position strategically adopted after 1978 to allow the executive and the presidency to wield arbitrary power, free from the constraints of law. Abuse of power became the norm, not an exception. The executive no longer needed to worry about the law when making decisions—whether about matters of life and death, enforced disappearances, or the misuse of national resources. This disregard for law and justice became a hallmark of governance.

The present economic crisis—characterized by default, foreign exchange issues, and the paralysis of the economy—is deeply intertwined with the collapse of the justice system. These issues are not separate; they are interconnected. Resolving one without addressing the other is impossible.

We reiterate these preliminary remarks, which were also addressed in our first letter, to express our appreciation for the government’s stance that these matters cannot be delayed any longer.

Bribery and Corruption Control

In this letter, we wish to focus more specifically on the role of investigating offenses related to bribery and corruption, which is crucial for bringing about meaningful change in Sri Lanka. Addressing corruption will not only help eliminate it but also restore stability to the country, creating an environment conducive to investments, economic development (such as improving tourism), and, most importantly, rebuilding public trust and security. We cannot ignore the widespread theft, robbery, and other serious crimes faced by the people—issues that are symptomatic of the hopelessness created by the economic crisis and a state apparatus that fails to address the basic security needs of the people. For small local investors, law and order are the most important considerations. Livelihoods depend on the ability to conduct business in a stable, secure environment.

In any country, the best test of the effectiveness of bribery and corruption control through a proper system of investigation is the capacity to investigate the highest-ranking police officers if allegations of corruption or bribery arise against them. If bribery and corruption can be controlled among  senior officers, it signals that there will be very little room for such activities within the rest of the system.

Why is this so? The entire law enforcement system depends on the policing system, which is hierarchical, running from top to bottom. It is a command structure, and if this structure operates within the framework of the rule of law, many problems related to crime and similar offenses are likely to be brought under the overall control of the legal mechanisms within the country. The top-to-bottom structure relies on the leadership of a hierarchy of police officers, all under the control of the Inspector General of Police (IGP).

Theoretically, the top commander of the policing system is the IGP. His deputies, and those in higher positions, function like the nervous system, carrying out the requisite functions of the rule of law. Therefore, this top layer must operate solely within the framework of the law, without any suspicion that they are acting according to principles outside the legal system. This is an essential precondition for the functioning of the rule of law.

For this reason, the elimination of bribery and corruption at the top of the police force becomes the test of whether bribery and corruption can be controlled elsewhere in society. The mechanism through which bribery and corruption are brought under control is through investigations of allegations relating to these offenses. It is crucial that these investigations are conducted without any suspicion, ensuring that genuine inquiries are being made. If there is a belief that interference can occur during investigations into bribery and corruption, it undermines the very possibility of controlling these crimes.

This brings us to the need for and the role of independent investigators from outside the police force. If police officers are to investigate their fellow officers, it is natural that information leaks will occur. Those being investigated may become aware of the inquiry and take steps to sabotage it, such as fleeing the country to escape responsibility, destroying key documents, or harassing witnesses and complainants. In some cases, officers may use their influence to manufacture evidence in their favor or prevent the investigation from progressing. These practices are not new and have been observed in many countries, which shows that such risks are inherent in allowing police officers to investigate their own.

Merely instructing officers to treat everyone equally does not work, especially when investigating fellow officers. Even in the medical profession, it is difficult for colleagues to gather evidence against another doctor when misconduct is involved. This is a natural consequence of shared experiences, friendships, family ties, and the close-knit nature of the professional community. Bribery and corruption are closely linked to human nature. If someone seeks assistance, they are more likely to turn to someone they know well, rather than a stranger. The bond between colleagues working in dangerous jobs, who share similar experiences and often socialize together, is not unlike that of family members. Therefore, allowing “brother officers” to investigate their fellow police officers is akin to having family members investigate each other.  Expecting them not to assist each other or not interfere is unrealistic. While exceptions exist, the rule is that people tend to help those they know well, particularly when they have long-standing relationships.

For this reason, bribery and corruption investigators should be entirely separate from the police force. They must not be under the control of the IGP, as the IGP may be influenced by other officers and could remove or transfer investigators at will. This would undermine the independence of the investigation, as such actions are normal within the policing department for other investigations. However, investigations into bribery and corruption are a unique set of crimes that require special procedures, criteria, and independent capacities to ensure impartiality.

Thus, maintaining a clear social distance between those investigating bribery and corruption cases and those involved in other types of criminal investigations is essential for the system’s integrity. In fact, the necessary first step to control corruption is to ensure the independence of the investigators. In Sri Lanka, this will require not only changes in laws related to bribery and corruption, but also reforms in the organizational structure of the Bribery Commission. The commission must have the resources to recruit, train, transfer, and promote its own investigators. In countries with effective anti-corruption systems, internal controls ensure that investigators are supervised to prevent them from becoming involved in corruption. With the right principles, values, and organizational structures in place, a bribery commission is more likely to succeed in eliminating corruption, starting from the top of the police force.

If the police force officers realize that they are not exempt from undergoing proper investigations, it is likely that other branches of the bureaucracy, such as customs or foreign exchange departments, will also realize that they too are not exempt from being subjected to investigations.

Sri Lanka requires a dynamic approach to the functioning of state mechanisms:  proper functioning has been hindered by the very nature of the current policing system, which allows for the spread of bribery and corruption. This issue is not just about individuals or the politicization of the police, although those factors are also important. It is about an organizational defect that needs to be addressed if the country is to achieve its promise of eliminating corruption.

Where independent investigation agencies, such as the Independent Commission Against Corruption (ICAC) in Hong Kong, have been established, they have proven effective in bringing bribery and corruption under control, not only within the police force, but throughout the system.  However, when the ICAC was first created, the Hong Kong Police revolted against it, even going on strike, demanding its closure. It was only after tough negotiations, involving the then British Governor, that the police agreed to cooperate. Since then, the Hong Kong Police have earned a reputation for being corruption free and efficient. This has contributed to the overall security of the region, where even a young girl can travel at midnight without fear, knowing that an efficient police system is in place to protect her. This efficiency was achieved not only by improving police practices, but especially by taking the investigation of allegations of bribery and corruption outside the police force and placing investigations under a separate commission.

Several Important Steps

To address the separation of investigative functions and shift them entirely to independent experts under the control of the Bribery and Corruption Commission, several important considerations must be taken into account.

a) First, the change from relying on police investigators to using independent experts does not require any constitutional amendments. The power to investigate bribery and corruption lies within the purview of the Commission, and the way in which this function is carried out is a matter for the Commission to decide, in accordance with existing statutes. With the passage of certain regulations, this change could be implemented without requiring a constitutional amendment. At worst, the government has the necessary parliamentary majority to address this issue administratively.

b) The next challenge is to address the practical issues involved in ensuring this change takes place. This would include developing regulations and administrative measures for receiving complaints of bribery and corruption. In today’s digital age, the entire process could be digitized, which would enable more efficient management. Complaints should be reviewed within a few days by a group of competent individuals authorized by the Commission, who would assess whether the complaint meets the necessary legal criteria. These criteria should be objective, law-based, and free from extraneous considerations. Once a decision is made to proceed, the next steps should include assigning competent individuals or teams to investigate the case and determining the timeline for reporting. Technology and expert input could be used to support these investigations.

Once all evidence is collected and reviewed, ensuring that all legal requirements for a valid indictment are met, the process of indictment can begin. Whether an independent prosecutorial branch should handle this process is a separate issue, but the current practice of leaving it entirely to the Attorney General’s Department should be reconsidered if it continues to result in ineffective outcomes.

c) Another important consideration is the development of the necessary resources to support this independent expert team working under the control of the Commission. This issue should be studied separately by a suitable mechanism appointed by the Cabinet to identify the resources needed for effective implementation. This will also require the recruitment of independent experts from various fields within the country, along with basic training and the establishment of an efficient working system. Experienced state bureaucrats could assist in ensuring the efficiency of this process. If necessary, external expertise could be sought from countries with successful models of such systems.

Given the gravity of the matter, as indicated by the President, we suggest that a Cabinet subcommittee of senior officials be appointed to study these issues in detail. Within three months, they could report on the measures needed to bring about this change. If necessary, statutory changes could be proposed and passed through Parliament.

This letter is not intended to be exhaustive. Rather, it is meant to outline the direction we believe should be taken. As the President has invited input and support for this initiative, we offer our support for the sentiments expressed by the Hon. President in his Christmas address.

Thank you very much.

Basil Fernando

Director of Policy and Programmes

Asian Human Rights Commission