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Sri Lanka: IMF backed draft Anti Corruption Bill gives ‘enormous amount of power to politically appointed Commissioners’.

Image: Sri Lanka is full of puppets!

‘The ACC’s three Commissioners wielding “an enormous amount of power” were at the top of the structure, appointed by the political authority once in three years.’

Employees of the Commission to Investigate Allegations of Bribery and Corruption (CIABOC) were among those who petitioned the Supreme Court this week challenging various clauses of the Government’s proposed Anti-Corruption Bill.

The bench comprised Chief Justice Jayantha Jayasuriya and Justices Murdhu Fernando and Janak De Silva. Submissions continue tomorrow.

A petition by 10 Attorneys-at-Law working at CIABOC stated that lacunas and inconsistencies in the Bill shall result in serious issues with the prevention and redress of bribery and corruption, and thereby violate the constitutional rights of the citizenry.

They stated that one or more clauses also violate, or are inconsistent with, the fundamental rights of the petitioners and other employees of CIABOC; that the preamble and objects under Clause 2 fail to recognise offences related to assets; and that Clause 2 fails to recognise regulating corruption in the private sector as part of the objectives of the proposed Anti-Corruption Commission (ACC).

The officer cadre of the present CIABOC is considered a “closed service” with disciplinary control, promotions and transfers regulated by the Public Service Commission (PSC), the petition states. However, the new law hands over these powers to the ACC.

“To ensure the independence of the officers who carry out the investigations and/or making of recommendations against suspects, it is imperative that the Commission [ACC] does not have any influence on these officers,” it says. “Therefore, remuneration, disciplinary control and promotions of officers employed at the Commission must not be within the discretion of the Commission.”

The petitioners were represented by Uditha Egalahewa, PC, with N K Ashokbharan. Five other legal officers of CIABOC also separately petitioned the Supreme Court, represented by Harsha Fernando appearing with Yohan Cooray and Ruven Weerasinghe.

They welcomed the Bill but said there were several inconsistencies that could make it difficult to ensure successful prosecutions, leaving room for technical objections. Making submissions, Mr Fernando highlighted that the ACC’s three Commissioners wielding “an enormous amount of power” were at the top of the structure, appointed by the political authority once in three years. The Director General at the next tier is similarly appointed once in every five years.

The appointment criteria have to be strengthened because there is no certainty that the appointment process is not going to be tainted with political maneuvering,
he maintained.

Sri Lanka faced twin challenges of not only investigating and prosecuting bribe takers, but also recovery of assets, he said. Not including lifestyle-based investigations, and insufficient provisions with regard to assets, makes the Bill partially effective.

The inclusion of the judiciary into the scope of the Commission should not be seen as violating the separation of power doctrine as the Commission cannot look into judgments but more into administration. He said that this is a welcome step leading to enhancing public confidence in the judiciary.

Associating himself with Mr Egalahewa, Mr Fernando also recommended that employees should continue to be appointed by the Public Service Commission. Requiring the Commission’s approval even to initiate a preliminary inquiry was impractical and would slow down work, considering the number of complaints received per year.

Transparency International Sri Lanka (TISL), while welcoming the Bill, challenged 37 provisions of the law on the basis that they are unconstitutional, considering that the law must be enacted in accordance with accepted international norms, whilst safeguarding fundamental rights ensured by the Constitution of Sri Lanka.

TISL maintained that several provisions of the Bill were “amongst other things, vague and overbroad, disproportionate, lacking in clarity and provide insufficient protection to protect fundamental rights…”

It warned the law could have a chilling effect on whistle-blowing, the right to information and freedom of expression, as well as affect the concepts of transparency and accountability. The clauses that have been challenged include those that provide for declaration of secrecy, fail to require public disclosure, especially of donations received and which deal with bribery in the private sector without providing incentives for it to introduce and implement measures to combat corruption.

Attorney-at Law Pulasthi Hewamanna appeared for the petitioners with Attorneys-at-Law Githmi Wijenarayana, Fadhila Fairoze, Piumi Madhushani, Harini Jayawardhana, Lasanthika Hettiarachchi and Sankhitha Gunaratne, instructed by Attorney-at-Law Niluka Dissanayake.

The Bar Association of Sri Lanka, too, petitioned the SC in this regard. BASL was represented by Saliya Pieris, PC. The petition took up the same position as TISL in that several clauses of the bill were “vague and overbroad, discriminatory and unreasonable, disproportionate, lack clarity, impinges on the judicial power of the people and/or provide insufficient protection to protect fundamental rights”.

BASL challenges the fact that offences do not cover the President as he/she is not included in the definition of “public official”. It contends that the bail provisions are too strict and can lead to abuse. It objects to Members of Parliament being allowed to accept from trade unions and other organisations payments for their “maintenance”. It also holds that the powers given to withdraw charges are far too wide and can lead to abuse.

Anti-corruption activist Chandra Jayaratne is a fifth petitioner, represented by Dilumi de Alwis. He, too, objects to the creation of a new regime to administer the affairs of the ACC’s officers.

“The petitioner states that in any event when recruitment, promotion, disciplinary procedure is governed by the same institution, the independence afforded to the officers of the Commission to carry out their work independently is compromised,” he maintains.

The Bill provides that it is not an offence for a public official to solicit or accept any gratification which he is “authorised” by any law or terms of his employment to solicit or accept, the petition points out.

“The petitioner states that the said Bill does not define the types of ‘gratification’ that a public officer may solicit or accept nor specify the laws or type of employment which ‘authorises’ such officer to solicit or accept gratification as stated in the said Bill,” it continues. This by itself is violative of the equal protection of the law guaranteed by the Constitution, as it “would be a facilitator of abuse of power, to the detriment of the entire citizenry of Sri Lanka”.

Mr Jayaratne also challenges various other clauses in the Bill – such as a provision that requires the Commission’s permission to disclose information under the Right to Information Act. “The petitioner states that the said provision indirectly mandates that information would be made available only with the permission of the Commission and where the Commission considers it necessary to release such information which is violative of citizens’ right to access to information as guaranteed by Article 14A of the Constitution,” the petition says.

Additional Solicitor General Nerin Pulle, PC, appeared for the Attorney General with Deputy Solicitor General Avanti Perera and State Counsel Indumini Randeny.



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