By Kusal Perera –

Kusal Perara

In a not so peculiar turn of events for Sri Lanka, but certainly beyond what was expected, the Fundamental Rights petition by former secretary to the ministry of defence and urban development Gotabaya Rajapaksa, was allowed leave to proceed by a two member Supreme Court (SC) bench with a restraining order that prevents him being arrested, at least till 06 of October, when the petition is fixed for hearing. From 12 May to October 06, Gotabaya is now free to travel anywhere he pleases without fear of arrest, except outside Sri Lanka.

Leaving PM Ranil Wickremesinghe’s usual out of the orbit interpretations, this time on Commonwealth intervention, this length of time stretched for 146 days for the SC to start hearing a petition that in turn allows Gotabaya an arrest free period that long, is most terrifying to say the least about judicial independence. The issue is not just about his FR but one on mega financial crimes related to national security and illegal weapons trade. This raises the most important question whether social responsibility of the judiciary can be left aside for purely legal and technical propriety.

Whatever Hultsdorf decides, resentment over the Financial Crimes Investigations Division (FCID) is obviously about politics and not about curbing corruption. There is in any society a consensus against fraud and corruption. Yet in modern liberal economies fraud and corruption is a common occurrence usually taken for granted, when at tolerable levels. Tolerable, when it is not hitting you right in the face, almost every day. Way back in the 80’s when the accelerated Mahaweli Development projects were on, the only “Left” MP in parliament, the respected Communist Party member Sarath Muttettuwegama accused Minister Gamini Dissanayake of corruption in Mahaweli projects. He was told by the minister, the issue is in his communist lingo. “You call it corruption. We call it commissions” said Minister Dissanayake. The minister said, they had left a margin of about 10% for such transactions for the “system to move things fast”.

That’s neo liberalism in its formal, tolerable form. Over the years through President R. Premadasa and then through President Chandrika Kumaratunga’s tenure of 11 years when she was minister of finance also, we slid and slumped to conscious mismanagement of the free market economy. Fraud and corruption mounted to very conspicuous heights. Thereafter, we were pushed over the top to the bottom of the pit with an unbearable stink by the previous Rajapaksa regime. Worst was the period after the 2010 January presidential polls. The 08 Jan 2015 presidential poll was therefore all about curbing abusive and excessive powers with the executive presidency and cleaning the stinking pits.

None could have opposed Rajapaksa at this election, without promising both the abolition of the executive presidency and cleaning the whole of the State machinery of fraud and corruption. Promise on the 19 Amendment to the Constitution to include independent commissions was the major attraction for the urban middle class that actually gave the anti Rajapaksa campaign its vitality and vibrancy. This UNP government under President Maithripala Sirisena, though without reasonable justification to hold power (merely on candidate Sirisena’s promise he would make Wickremesinghe PM if he is voted as president, does not justify installing a government with just 59 MPs and without an election) can only justify themselves, if they act against fraud and corruption with adequate steps in bringing robbers and looters of the previous regime before law.

The impatient urban polity thought the whole cleaning up could be done within 100 Days and wanted a good round of quick “Whaling”. This needed new teeth in our system. The system lacked wherewithal for financial crime investigations. Especially into complicated and complex transactions and deals with equally complex financial contracts. The police department needed special training in investigating and combating financial crimes even with a special unit established. PM Wickremesinghe went on record to say such training was provided for one month when the FCID was established. Whether that one off special training is enough or not, the need had not been ignored.

This was certainly a political demand met with a political decision taken at the meeting of Cabinet Ministers on 21 January, 2015 and gazetted on 13 February. Curbing corruption needs a clear and a firm message to all; more for those in decision making levels in government, its line agencies, the corporate sector and politicians. The society has to be convinced that allegations are not just media hype, but are being independently investigated by a legally constituted body under the IGP. That with substantial evidence for any legal procedure to be adopted as advised by the AG, action will be taken irrespective of past prestige, positions and power. If proved guilty, they would be punished as any other. Treading that path requires a strong political will.

But political will translated into political decisions cannot be justified along with partisan politicking. Politicking rubs the whole issue the wrong side up and devalues the political will and its action. Most investigations taking place don’t seem to prove such political will is being turned into impartial inquiry. Weliamuna investigation is one such bad instance. Apart from transparency and accountability issues raised by Colombo Telegraph (CT) and Amrit Muttukumaru, the very appointment of J. C. Weliamuna for investigations on SriLankan airlines smacked of “green” politics. For over three years, Weliamuna was a prominent campaigner against the Rajapaksa regime on “Platform for Freedom” with then Leader of Opposition and UNP leader Wickremesinghe and other UNP stalwarts. He was also a very conspicuous presence in most other UNP led protests. He is quite openly, “UNP in politics”. And from what Chandra Jayaratne had responded to CT on Weliamuna investigations the implied truth is, that investigation lacked expertise to handle the responsibility given. Therefore he volunteered with his expertise. It’s another aberration, for these high profile investigations are not mandated to have volunteers in the panel of investigators. If Weliamuna investigation lacked expertise, Jayaratne’s volunteerism should have been made public. Political colour and incompetency together with undisclosed volunteer investigators violates social trust, a supreme necessity in today’s political context of many uncertainties.

Worst of all, such actions contradict the important political argument that justified the establishment of “Independent Commissions”. Independent Commissions under a Constitutional Council was felt a serious need to de politicise all arms of the State that were being manipulated by political leaderships in power. Politicising of the State was set in place with the adoption of the first Republican Constitution in 1972, taken to its furthest with the adoption of the second Republican Constitution in 1978 with the creation of the Executive Presidency. Within 22 years, this society was burdened and exhausted with heavy politicising of the whole State right down to the village level school administration and Grama Seva Niladharies. This burden and fatigue saw the 17 Amendment almost forced on President Kumaratunga’s government in 2001. The social need and pressure was such, it was adopted unanimously in parliament.

Unfortunately, adopted with space for meddling by Executive Presidency, the Constitutional Council could not be established for independent Commissions to take over the task of de politicising of the State. Rajapaksa’s entry thereafter made it worse. The 18 Amendment did away with the 17A and thus became a social rallying point once again for a 19A to have improved independent commissions. While the adopted 19A is only a “Oh, something is there now” amendment, Wickremesinghe government is clearly politicking with investigations. The gazette notification in establishing the FCID contradicts the very concept of independent commissions promised during the past 02 years. Independent Commissions were not meant to allow political interference in any way and at any level. Yet that is how the most important FCID is established.

The gazette notification establishing the FCID should have best been without Section 4. That Section reads, “These complaints are forwarded to the Inspector General of Police for investigation by the Secretariat established by the Cabinet Sub Committee under patronage of the Hon. Prime Minister set up in accordance with the Cabinet decision and, in addition to that, the special complaints are forwarded by the Cabinet Sub Committee directly to the Deputy Inspector General of Police in charge of the Division.”(emphasis added)

It is not how the “cabinet sub committee” is given policy status, but the fact that a committee of few ministers picked by the PM and headed by PM has directly under them the Secretariat for anti corruption investigation, with a DIG appointed (who also carries a questionable track record) to head the division. One cannot hide behind the label “cabinet sub committee” and claim impartiality. Whatever the number, these ministers will not be politically impartial to oversee any investigation. Nor would the PM be. Not in this Sri Lanka. This therefore is an open contradiction to what was expected from Independent Commissions in de politicising the State.

Added to this politicising, the part of the sentence that follow as, “…..in addition to that, the special complaints are forwarded by the Cabinet Sub Committee directly to the Deputy Inspector General of Police in charge of the Division” makes a total mockery of what this society expected from independent commissions. On what basis will this group of ministers who sit as a sub committee decide what a “special complaint” is and what is not ? Simply asking, what is “special”? What is “special” to me, may not be “special” to PM and the sub committee. And for such “special” complaints to go direct to the DIG for investigations with whatever “special” instructions there could be, is pure and brazenly nude politicking.

This whole Section 4 if deleted, would have provided a reasonably independent mechanism, where only the integrity of the person heading it and kept answerable to the IGP could be questioned and not the mechanism itself. But why didn’t the PM and his government stop with Section 3 ? Why did they include Section 4 to have their fingers in investigations?

This has violated the trust and the mandate given by the majority of people at the January 08 presidential poll to depoliticise all major State institutions including the police department. It pollutes independent and impartial investigations into all frauds and corruption. It is best if advocates for the type of investigations carried out by this government explain why Section 4 in this gazette notification cannot be removed. For that clears doubts on how political this whole anti corruption campaign is, or is not.