A salutary provision in the draft Bill is that it has done away with the 2 Supreme Court Judges and a retired police official being members of the Commission. The statistics speak for themselves and proves its failure and its dismal record. I do not understand why an age limit of 62 years has been introduced for the Commissioners. Their term of office is from 3 – 5 years and are ineligible for re appointment
By Harindra Dunuwille
According to reports, several amendments are to be suggested and made at the Committee stage in Parliament on the 19th July, 2023. We, the public are unaware of these amendments.
Under the Right to Information Act, I asked for information of all cases filed by the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) against all Parliamentarians from 1994 to date, i. e. 4th May 2023. In its reply dated 12th June 2023, it discloses that there have been 19 cases filed in the Magistrate’s Court and 12 in the High Court. Of these, 14 cases have been withdrawn as a result of Supreme Court Case No. Writ 01/2011, where it was found that there was no valid directive from the Commissioners to the Director General to institute action.
The reasons attributed by the CIABOC in its reply to me are; (1) Technical errors (2) Absence of written consent of the 3 Commissioners for (a) prosecution and (b) an investigation. In one case under the Declaration of Assets and Liabilities Act, the accused who pleaded guilty has been fined Rs. 1000/- and in 2 other cases the accused have been acquitted, no
reasons given.
Further, in paragraph “C” of the reply sent to me, it gives the number of cases withdrawn since 2013 as follows:
The CIABOC states that it has re-filed 60 cases in compliance of the above mentioned Supreme Court case. We earnestly hope these technicalities arising from shortcomings in procedure have been adequately addressed in the new Bill
There are three very important matters that have not been addressed in the Bill.
1. The Commission mainly relies on (a) police personnel, either seconded or loaned to it to make its investigations, and (b) engages State Counsel of the Attorney General`s Department to prosecute its cases in Court. As we all know both these State departments are subject political influence and pressure, thereby compromising their independence. We have heard of an Investigation Officer, who when at the brink of concluding his investigation was transferred out of the Commission, resulting in no prosecution.
2. Ideally the Commission should have its own investigating officers and its own prosecutors.
3. The allocation of funds to the Commissions are woefully inadequate which makes it prohibitive for it to hire its full complement of approved staff and to recruit new Officers. If the above suggestion is accepted, a much bigger allocation would have to be made annually by Parliament. If not done, it will a matter of history repeating itself and Commission continuing to be a dead duck.
4. There appears to be no provision for the recovery of looted and pilfered public funds, stacked away here and abroad.
A salutary provision in the draft Bill is that it has done away with the 2 Supreme Court Judges and a retired police official being members of the Commission. The statistics speak for themselves and proves its failure and its dismal record. I do not understand why an age limit of 62 years has been introduced for the Commissioners. Their term of office is from 3 – 5 years and are ineligible for re appointment.
What it means is that they shall be looking for future appointments and employment through patronage, which will compromise their “independence”. It is much like the case of our superior court judges who are required to retire at age 63 and 65.
A few suggestions that may be considered by Parliament on the19th July. Section 4 (2) (b) An upper age limit of 70 for the Commissioners would allow a wider field of competent and independent persons from which the Constitutional Council could make its pick.
Sections 41 & 42 –Investigations. It refers to the power of the Commission to investigate any matter disclosed as provided in section 42. However, section 4(3) of the present CIABOC Act 19 of 1994 gives the Commission the power to investigate any matter “whether or not such matter relates to a period prior to the appointed date and notwithstanding anything to the contrary in any other law”. This retrospective provision is missing in the new draft Bill. The clarion call of the country was and is “catch the rogues and make them accountable”. Therefore, it is absolutely imperative that the present provision be retained and we go back to, say 1994 when the CIABOC Act
became law.
Section 65 – Prosecutions – The Commission is required to direct the Director-General to initiate prosecutions in its name. As mentioned above, cases were withdrawn upon objections raised by the accused. It has happened too often to dismiss it as mere mistake or oversight. I hope this lacuna in the present law has been addressed adequately.
Sections 67 & 68 – conduct of cases. Reliance on the Attorney General`s department – referred to above
Section 71 – punishment. Why allow the wrong doers to “express remorse” and be let off. They will all do so without the slightest qualm.!!
Section 93 – (paying a bribe) The proviso in this section provides for a Trade Union or “other organisation” to pay an allowance to a Member of Parliament, and such payment will not be a “bribe”. What are these “other organizations”, and why, this provision? Is it to legalise bribes to M.Ps?
Section 111 (Corruption) Section 70 of the Bribery Act has been copied verbatim except for an enhancement of the punishment. It is important to include the “abuse or misuse of power of office’ as an act of corruption, and not leave it for the Courts to interpret it as an act of corruption. Abuse or Misuse of power has plagued our insanely
politicised society.
The title of the new law will be “Anti-Corruption Act”, but the word corruption has not been defined.
Section 150 Sentencing guidelines. Here too upon conviction an “expression of remorse” would entitle the convict to a lenient sentence!!
I hope this piece of legislation will meet the aspirations of the public who yearn for honesty and accountability from our elected representatives and public servants.
The writer is a senior attorney-at-law, former MP, State Minister and Mayor of Kandy.
