The removal of the Director General of the Bribery and Corruption Commission, Piyasena Ranasinghe from his post by the President has become a topic of controversy. There are various interpretations given to it, and the official view of the UNP is that the director general has been removed from his post to suppress the complaint about the MIG aircraft transaction.
Immediately after Piyasena Ranasinghe was removed from his post a person trusted by me and who is interested in the subject of good governance spoke to me on the phone and emphasised to me the importance of opposing the president’s action. My reply to him, in brief, was as follows:
Is the Commission honest?
I have often criticised in public the conduct of the Commission of Bribery and Corruption. On a number of occasions I had myself examined its honesty. The conclusion I had arrived at was that it is a corrupt institution which is not impartial politically and has abused its immense powers.
When I found that the Constitutional Council, which functioned briefly for two months at the time, had decided to appoint these three commissioners I objected in writing in February 2005 to the Constitutional Council, against the two retired Supreme Court judges who had been included in that list of names. As these two judicial officers had failed to perform their duties as judges of the Supreme Court and as members of the Judicial Services Commission, at the time they were functioning as high judicial officers. I stated in my letter that they were not suitable persons to hold such posts. In order to substantiate my argument I included the facts known to me in that letter of objection.
Although I did not receive an official reply to my written protest from the Constitutional Council, I came to know through unofficial sources that, due to the absence of any other applicants, the appointments had to be made to those posts, disregarding the objections raised by me. In addition to that I have also criticised in public and on several occasions the conduct of Piyasena Ranasinghe as well.
I emphasised all these matters and stated that although there may be something wrong in the manner in which Piyasena Ranasinghe was removed from that post, (that too is an arguable matter; although the Bribery and Corruption Commission Act describes the manner in which the President should appoint the director general, it does not describe the policy to be followed by the President when a person who holds the position of director general has to be removed) and although I was prepared to discuss that shortcoming, I was not prepared to contribute to any course of action that might impart an aura of heroism on Piyasena Ranasinghe or on the Bribery and Corruption Commission.
In my view the Bribery and Corruption Commission is only another failed project of a failed state. Although more than 12 years have passed since the setting up of the Bribery and Corruption Commission, it has not been able to eliminate bribery and corruption prevailing in the country. I think it is another white elephant that feeds on public expenditure. I do not mean that a powerful and independent institute is unnecessary for suppressing bribery or corruption. My view is that the present commission is not at all equal to the task.I believe that its integrity and impartiality have been tested more than enough.
Mangala’s credit cards
A fine illustration of the dishonesty and the political partiality of the commission is the policy it followed in regard to the credit card transactions of Mr. Mangala Samaraweera who was the minister of Posts and Telecommunication at that time. The government provides the funds required by a minister for his official foreign travels. It is illegal for him to obtain additional funds from government or semi- government institutions under him.
I do not say that this is a serious crime committed by Mr. Mangala Samaraweera alone. Similar offences are committed by all ministers, whatever be their party affiliations. However, it is only against Mangala Samaraweera that a complaint has been made in regard to such an offence. It was an inquiry which could have been a fine opportunity for the commission to earn credit and trust. However the commission turned it into an opportunity to display its loyalty to then president Chandrika Kumaratunga rather than an opportunity to show its loyalty to the people. What was vital for the commission at that time was not the people’s trust but that of the President. The president wanted to terminate the inquiry into the allegations against Mangala Samaraweera and to free him from those accusations, and the Commission in accordance with her political requirements, freed him from those accusations on July 31, 2002.
At the workshops held by Transparency International to which it got the president of the Bribery and Corruption Commission to participate, I questioned the retired Supreme Court Justice Mr. Ananda Kumarasamy, who functioned at that time as the president of the commission, about the policy followed, about Mr. Mangala Samaraweera. When I stated that the decision showed the dishonesty and the partiality of the commission, Mr. Kumaraswamy’s reply was that, if I was not satisfied with that decision, I had the right, to go before the Supreme Court and challenge that decision. If the Supreme Court is as partial as the Bribery and Corruption Commission in such questions which have a political significance, how can the going before the Supreme Court be a solution to the problem?
The person who had acted most enthusiastically to get Mangala Samaraweera freed from the allegation about the misuse of credit cards was Piyasena Ranasinghe, the director general of the commission. Due to their loyalty to the President the members of the commission including its president approved of the director general’s policy.
When Mr. S.B. Dissanayake clashed with the President, the commission developed a special interest in inquiring into the assets and liabilities of S.B. Dissanayake. Justice Ananda Kumaraswamy (the president of the Commission at the time) had told a lawyer known to him that he was prepared to inquire into the assets and liabilities of S.B.Dissanayake if someone filed a plaint. At that time I too had serious differences with S.B. Dissanayake but when I came to know of what Ananda Kumaraswamy had said, I developed a contempt not for S.B. but for the Commission.
The question of the Public Trustee
The inquiry about the public trustee Sarath Senevirathne was another instance in which the integrity of the present commission was tested. Although it was not possible for the commission to refrain from prosecuting him, prosecutions were done in a manner that left loopholes for him to escape. When the High Court acquitted him in one of the cases filed against him the Commission withdrew all the cases, which were more than a dozen that had been filed against him before the High Court. If the commission did not know how to file a case against Seneviratne in a manner in which it was possible to prove the accusations against him on the available evidence, it would not be possible for the commission to file any cases against any other person on charges of corruption. What the commission should have done, if it was honest, would have been to challenge the verdict of the High Court. What happened instead was that all the other cases that had been filed against him were also withdrawn. Despite the case being rejected in court due to a technicality, there was no attempt to refile the case.
Justice Ameer Ismail, the current Chairman of the Commission was also included in the group that went to inquire into the working of the independent commission that functioned in Hong Kong against corruption. At one of the sessions that were held there I detailed the case against public trustee Sarath Seneviratne, and asked the Chief of the Hong Kong Anti-Bribery Commission what they would have done in a similar case.
He replied to that question with no hesitation at all and in the presence of Mr. Ismail, he declared that the Hong Kong judiciary is an independent judiciary and that, if the High Court acquitted such a person for whatever reason, the commission would go to the higher court against that judgment. He went on to say that in Hong Kong such a person would not be permitted at all to hold a government post even if all the courts acquitted him of all the charges.
Reasons for Failure
It is vital to inquire into the reasons for the failure of the Anti-Bribery and Corruption Commission to reduce bribery and corruption in our country. Some of the reasons I see are as follows:
1. The draft of the law of inquiry into bribery and corruption is weak. Even if the members of the commission are appointed by whatever commission, it cannot be considered independent.
2. The fact that the commissioners and the staff are not persons who honestly desire the elimination of Bribery and Corruption and are not persons with the necessary qualifications may be considered the greatest weakness of the commission
It consists of three retired persons. Two of them have to be retired judges of the Supreme Court and the Court of Appeal. The third member must be a person experienced in investigating crime and in law enforcement. What it says indirectly is that he must be a police officer. A justice of the Supreme Court retires at the age of 65. A justice of the Court of Appeal does so at the age of 63. If it is not proper for a person to remain in the Supreme Court after completing 65 years, how is it proper then for such a person to shoulder such a heavy responsibility as that of member of the Commission to Investigate allegations of Bribery and Corruption.
Such an institution requires younger people and not those who see such appointments as retirement benefits. On the other hand the view that such an institution must consist of persons with a legal background is also false. If the commission has a legal branch to look into the law, why should the members of the commission be legal luminaries?
The system of giving appointments to retired judges in our country is also a wrong practice. In many civilised countries the judges are not permitted to do other jobs after retirement. That is why retired judges are paid their last salary in full, without deduction. In other services the retirement age is 55 years. Could there be a more foolish policy than to give a person, who works up to the age of 65 instead of 55 years and retires on a full pension, another appointment where he can draw another good salary?
The determinants used in selecting members of the Bribery and Corruption Commission must be changed. We must shift to a system by which persons of dynamism in other fields, like engineers and accountants, can be selected and appointed.
Failure to be tested
The greatest weakness in the relevant law is the absence of an institutional system where the activity of the commissioners and the staff of the commission is inquired into. When there is no institutional system to look into the activities of persons with wide powers, there will be the opportunity for misuse of existing powers. When power corrupts, absolute power inevitably corrupts absolutely. This is an inherent feature not only of this commission, but also of the entire state structure prevailing in Sri Lanka.
The President’s powers are unlimited. However there is no system by which the manner in which that power is used is examined constantly. The power vested in the judiciary too is unlimited, but there is no method by which the manner of its use by the judiciary is examined. The politicians including the President are subjected to a test, at least once in six years, before the people. The people have the right to defeat and send home a politician who has committed serious abuse of power. However, there is no mechanism whereby officials wielding wide powers in the judiciary and in other state institutions can be investigated. Although they are paid their salaries from public funds, the people have no right to send them home. A judge of the higher judiciary can be investigated only by a motion of impeachment tabled in parliament. What applies to the commissioners of the Bribery Commission is also the same policy.
In a context in which very wide powers have been received and are not inquired into, these persons might move towards a position where they abuse their powers. After the Bribery Department which had existed until 1995 was abolished and the Bribery and Corruption Commission was created, the commissioners appointed to that commission clashed with Ms. Nelum Gamage who functioned as the first Director General of the commission. Finally, in order to punish her, the commission adopted the policy of using its powers against her. Accordingly the commission started an inquiry into her assets and summoned her before the commission and asked her to explain her conduct. Thereafter she was succeeded by Mr. Rienzie Arsakularatne, a deputy solicitor general.
Rienzie Arsakularatne
He was not an officer with a prestigious history. There were allegations against him about his suppressing an inquiry report relating to a financial fraud involving a member of his family. In his dealings with the Ministry of Fisheries he had obtained salaries and allowances from a number of institutions affiliated to that ministry in addition to his salary from the Attorney General’s department.
It was Rienzie Arsakularatne who functioned as the lawyer for the prosecution in the defamation case filed for President Chandrika Kumaratunga against Sunday Times editor Sinha Ratnatunga. Making use of that opportunity and winning the President’s trust he became the acting director general of the bribery and corruption inquiry commission in addition to his post of deputy solicitor general. There too he tried to get the full salary of the director general in addition to his salary as the deputy solicitor general. When Rienzie Arsakularatne was having disputes with the commission the President removed him from his post and appointed Mr. Piyasena Ranasinghe to the post of director general of the commission with effect from November 1, 2001.
Then Rienzie Arsakularatne turned his removal from the post into something done with a political motive, and became a hero applauded by the opposition. He invented a queer story for the purpose. He summoned a press conference and said that at the inquiry into the assets of S.B. Dissanayake the allegations made against him were not proved and therefore he (Arsakularatne) made a report to the commission recommending that S.B. Dissanayake be exonerated, and that at the inquiry against Mangala Samaraweera the allegations against him were proven and therefore he (Arsakularatne) made a report to that effect to the commission, and that, angered by these two reports, the President dismissed him from his post. It was revealed later that both the reports had been written on the day after he received the letter dismissing him from his post. This is an indication of the parlous state to which the commission had fallen.
Although many people in the country do not remember now, The Sunday Leader editor Lasantha Wickramatunge went before the judiciary, against the appointment of Mr. Piyasena Ranasinghe (SC/FR/678/2001) who has now become a hero, as well as that of Rienzie Arsakularatne. Mr. Ranjith Abeysuriya PC appeared for the complainant while Senior Counsel Mr. R. K.W. Gunasekara appeared for the respondents.
Sad State of the Commission
The present state of the commission is tragic. In the whole of the last year the three commissioners assembled as a commission once only. The administration report prepared for the year 2007 by the president of the commission Mr. Ameer Ismail has not been seen by the other two commissioners. There is an allegation that at an inquiry into the assets, initiated against a high official of the police, a powerful member of the commission who helped to cover up the case later obtained a pistol and body-guards through the same police officer. There are allegations also that in inquiries initiated against a number of powerful persons, the inquiry files were closed arbitrarily.
In Hong Kong there is an institution which watches what happens in the Anti-Bribery Commission. That institution observes what the complaints received are and what action is taken by the commission about them. The observation committee consists of several selected persons representing the civil society, senior government officials and from the legislature. In our country, however, the commission is different. Even a single member of a commission can start an inquiry or close down an inquiry that has been started. There is no one to test the correctness or otherwise of the decisions thus taken.
I think, if we want an independent institutional system to curb bribery and corruption, we must first of all have a commission to inspect the activites of the Bribery and Corruption Commission from its beginning to date. The complaints received, the policies followed by the commission about them and the errors of the policies must be examined. If the director general or the commissioners have exercised their powers improperly, they all should be punished mercilessly. At the same time, it must be given the responsibility to inquire into, and make recommendations on the system of institutions the country needs to curb offences of bribery and corruption. A massive change in this sphere can be initiated through such a course of action only.