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LAGGARDS of SOUTH ASIA

2018-02-14 00:07:23
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Asoka Obeyesekere, a Barrister and political scientist, is the Executive Director of Transparency International Sri Lanka, which is the National Chapter of Transparency International (TI), the leading global movement against corruption. Previously, he was the Governance Consultant at Verité Research, where he founded and led the Manthri.lk team that ran the only Parliamentary performance monitoring platform in Sri Lanka. In an interview with the Daily Mirror Obeyesekere spoke on the rate of bribery and corruption in Sri Lanka, the role of the RTI Act in the fight against bribery and corruption, the loopholes in the corruption-related laws in the country and reforms.


  • The 19th Amendment provides CIABOC with the power to file an action on its own motion
  • Proceeds of Crime Act will assist in the repatriation of stolen assets
  • We have normalised bribery within the education sector to such an extent that people feel that having to pay to get their children into a state school is legitimised
  • Action against any offence under the Bribery Act can only be instituted by CIABOC
  • Amending Section 17 of the CIABOC Act is essential in ensuring that there is a well-coordinated state effort regarding anti-corruption
  • Draft bill before the cabinet on amending the Declaration of Assets and Liabilities Law which removes all the secrecy provisions has been slept on for more than one year
  • Under the current Parliamentary Electoral System running for a Parliamentary seat is a financially illogical proposition
  • RTI has led to outcomes which have addressed corruption

 

Excerpts:

Q In which sector are bribery and corruption most prevalent?

It is prevalent in a whole host of areas and therefore it is difficult to isolate one particular area. But anecdotally we very frequently hear about petty bribery with the Police Force. We all hear very frequently about instances of bribery within education which is particularly concerning. We have normalised bribery within the education sector to such an extent that people feel that having to pay to get their children into a state school is legitimised.

Q How has the Right to Information Act (RTI) faired in the fight against corruption and bribery?
Anecdotally, we have seen that the RTI Act and the information that has come out through the RTI has assisted anti-corruption specifically at the lowest levels. When I think about some of the RTI requests that TISL has assisted citizens with, for example, the Agrarian Services Department or Samurdhi entitlement, the act of filing an RTI request has led to outcomes which have addressed corruption. RTI is about getting information, which should be used to support the ultimate outcome that the citizen desires.

RTI is not necessarily a direct grievance mechanism and that’s where the challenge is. It is about unlocking the information that can then be used for an anti-corruption purpose. I have highlighted some citizen level examples. But when looking at the other end of the spectrum there are opportunities for RTI. For example, we have filed a public interest RTI request on the financial records of political parties held by the Elections Commission. The Elections Commission, like a model public authority, provided that information within the time frame and that information is available online for anyone to access. This leads to greater public accountability and there is a strong connection in the way in which that information can then be used to look at potential allegations of corruption.

Q To what extent are the general public interested in sending RTI requests?
There is a need for greater public awareness of RTI. When we speak to our State counterparts we constantly highlight the fact that it is one thing to constitutionally recognise the right to information, it is excellent that we have then gone and enacted the RTI Act, but it is essential that the State communicates to the citizens the fact that they have a right to information. Frequently we are told that it is the responsibility of civil society. That is too big a burden for civil society on its own to carry. An entire nationwide public information strategy needs to be implemented by the State media. That said there are good examples of collaboration. We created animations on the right to information which for no cost ITN, Rupavahini and Vasantham ran in English, Sinhala and Tamil to engage the public on the right to information.

Q In January last year Transparency International (TI) published a report, which ranked Sri Lanka in the 95th position in its Corruption Perception Index. Sri Lanka had gone down by 12 ranks. What are the specific reasons as to why Sri Lanka went down?
The Corruption Perception Index that TI publishes globally every year is an index upon the perception of public sector corruption. So it looks at a 24-month data set. The raw score for 2015 was 37 while the raw score for 2016 was 36. So there was a one-point drop in our score which resulted in our falling 12 places.

Even if the drop is slight, the mandate of the Government was to go completely in the other direction, given their anti-corruption mandate. I would say that the perception of public sector corruption remains broadly the same as it has in the past. There have been very progressive steps like the enactment of the RTI Act among other things. But more needs to be done.

If we look across South Asia we have to be humble enough to realise that we are the laggards. In India when someone is a nominee at an election the Elections Commission scans their asset disclosure puts it on the web and it is there for the public to see. Why is it that in Sri Lanka there is so much secrecy surrounding asset disclosures in public?

 

Q In a recent statement, TI expressed concern about using an Act of Parliament to recover the allegedly misappropriated money by the Bond Scam by circumventing the justice system. Ideally, how should the matter be resolved then?
There is bribe giving and bribe-taking. If there is an allegation of bribe-taking the Attorney General’s department is empowered under the Penal Code to act. However, on instances of bribe giving it is only the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) that can file an action under the Bribery Act.

We were always very clear on the fact legal action against any offence under the Bribery Act could only be instituted by CIABOC.

In that regard, when the final recommendations of the Commission of Inquiry came out it recommended that the sums which have been allegedly misappropriated can be recovered by an Act of Parliament. Our position is that a criminal justice outcome can only best be served by the criminal justice system.

We have examples from the past with what was anecdotally known as the Expropriation Bill, of how Parliament almost chooses to bring upon itself this quasi-judicial role. That deeply concerning approach that was taken in the past sometimes elicited a knee-jerk reaction. A criminal justice outcome is really the soundest way of ensuring this is properly looked into. It ensures that justice is served. That is why we have always maintained that a criminal justice outcome is essential. That is why it is important for the CIABOC to be very involved in exercising their sole exclusive mandate under the Bribery Act.

Q Do you see any limitations within the CIABOC?
There are laws and there should be an implementation of those laws. The 19th Amendment provides CIABOC with the power to file an action on their own motion. This means that they don’t need to wait for a complaint. They can unilaterally file an action on their own motion. 

This is frequently overlooked. If you go to our RTI website at www.rtiwatch.lk you will find the public interest RTI request that we have made to CIABOC. We asked them, as of that date of the request, on how many occasions they have used their power under the 19th Amendment. 
The written response was that they had not used it yet. So it is important that CIABOC also exercises those sorts of powers in holding individuals and the State accountable.

Q Do you think that the power of CIABOC should be decentralised because CIABOC is based in Colombo?
Indeed. I think CIABOC needs to do more to reach outside Colombo. That is essential.

Q CIABOC has filed charges against the former Attorney General Mohan Pieris and former Additional Solicitor General Mohamed Nawaz for allegedly preventing legal action over an incident involving financial misconduct. When two former top officials in the Attorney Generals Department are accused in this manner how does that affect the faith placed on the legal institutions by the public?
If there are any issues it is important that those are directly addressed. The fact that CIABOC is approaching and using Section 70 on this matter shows that the accountability system that we need to rely on is actually working. We should not turn around and say that we should lose faith in the system when the system is actually being used to hold people to account.

Q What loopholes do you see in the existing laws when it comes to fighting corruption and bribery?
We have obtained more than half of the MPs asset disclosures. I have the right to ask for that information. You have the right to ask for that information. But if you share with me what you requested or I show you what I requested, we are liable to a Rs. 2,000 fine and or two years of rigorous imprisonment. We don’t get to choose which one.

If we look across South Asia we have to be humble enough to realise that we are the laggards. In India when someone is a nominee at an election the Elections Commission scans their asset disclosure puts it on the web and it is there for the public to see. Why is it that in Sri Lanka there is so much secrecy surrounding asset disclosures in public?

This sort of information being in the public domain is one of the key steps in actually engaging the public into the push for anti-corruption.

Encouragingly, there is a draft bill before the Cabinet right now on amending the Declaration of Assets and Liabilities Law which removes all the secrecy provisions. But where is the progress on that? It has been slept on for more than one year. The Cabinet has approved the Open Government Partnership that said that the secrecy provisions found in Section 7 and 8 are going to be repealed and the public will have access to asset disclosures. But they have been overlooked.

Q Can you explain more about the Open Government Partnership (OGP)?
OGP is a policy-collaboration between the Government and civil society in ensuring, for example, a two-year agenda of transparency, accountability, and public participation. The cabinet gets the final approval and the final plan they approved included commitments under anti-corruption to repeal all the secrecy provisions. That is a very important aspect.

Another more technical area is that there is an upcoming Proceeds of Crime Act. This Act will also go a long way in assisting in ensuring that a proper mechanism is in place in Sri Lanka for the repatriation of stolen assets.

Frequently we are told that it is the responsibility of civil society. That is too big a burden for civil society on its own to carry. An entire nationwide public information strategy needs to be implemented by the State media. That said there are good examples of collaboration. 

Q Are there any reforms you would like to propose?
It is important to remove the secrecy provisions. At the heart of the yahapalanaya- good governance- mandate is the idea that the Government is opening itself. Ensuring things around campaign finance is also crucial. Under the current Parliamentary Electoral System running for a Parliamentary seat is a financially illogical proposition.

Therefore, it is essential that the public gets to understand what the financial interests are that support a Member of Parliament to enter Parliament.

The Central Bank’s Bond issue is a key element. It shows that we need to have Interest Registers. Not all people who hold high public office are corrupt. But they need ways of disclosing interests that they have so that no one at a later stage can turn around and say that they are corrupt because they know someone or they are related to someone. They should be able to disclose their interest right from the outset so that no one can cast aspersions on them in the future. That is essential.

Q Apart from the amendments to the Declaration of Assets and Liabilities law are there any other laws that need to be amended?
Section 17 of the CIABOC Act prevents the sharing of information between different state agencies. At present, the entire anti-corruption judicial process has to be driven by CIABOC. The Bribery Act and the Declaration of Assets and Liabilities law are the two key pillars of CIABOC which CIABOC solely oversees. But the CIABOC Act prevents information being shared. For instance, money laundering is looked at by the Police.

However, the offence of money laundering emanates from an act of corruption. But the Police don’t have access to the investigation materials used by CIABOC. So there is a duplication of efforts. So amending Section 17 of the CIABOC Act is essential in ensuring that there is a well-coordinated state effort in anti-corruption. All over the world, the wrongdoers are a few steps ahead of the State.

So the State must ensure that they have as many efficiency gains as possible through information sharing if they are to really apprehend the more sophisticated wrongdoers.

 


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