Dr A.C.Visvalingam
Most readers would undoubtedly be aware that, other than in respect of routine administrative matters, no outsider should ask a Commissioner or employee of an Independent Commission to discuss with him matters relating to the work being carried out by it. No room is provided for any unauthorized person to go into specific matters pertaining to an investigation or other related issues until such time as the Commission concerned has reached a firm and final decision on its own without being subject to partisan influence.
The Commission to Investigate Allegations of Bribery and Corruption (CIABOC) is an Independent Commission and, as mentioned in the preceding paragraph, there is absolutely no license for its Commissioners or employees to meet or speak to anyone privately regarding its investigations. By ensuring that the personnel of the Commission shun all unauthorized contacts, the persons being investigated, as well as the general public, could rest assured that the work of the Commission is being conducted in an independent and impartial manner.
In order to ensure that the standards of investigation, evaluation and decision-making observed by the Commission would be of a high standard, it has been more or less of a tradition to appoint a retired judge of a superior court as the Chairman; and other eminent persons with a legal background as the Commissioners. In keeping with this practice, Justice Jagath Balapatabendi, a retired judge of the Supreme Court, was appointed Chairman/CIABOC some years ago by President Mahinda Rajapaksa.
The average citizen knows that it would be a very serious offence to try to meet, even on the grounds of previous friendship, a judicial officer who is going to decide the merits of any litigation in which that particular citizen might be involved. He would render himself liable to be charged for contempt of court at the very least. Equally serious would be a situation if a judge during the hearing of a case were to meet a litigant or a witness in that case outside the courtroom in the absence of the counsel appearing for the contending parties. For all practical purposes, the same rules apply to CIABOC.
In view of this background, we were greatly perturbed by recent news reports that Speaker Chamal Rajapaksa had either summoned or requested the Chairman of CIABOC, to come and see him, and that the latter had complied. We had little idea of what they might have discussed but our very profound concern was heightened by the fact that, at the time they met, CIABOC was, inter alia, actively investigating allegations pertaining to some of the Speaker’s close relatives as well as several members of the political party to which he belongs.
The unease we felt on learning that the Chairman had gone to meet the Speaker in Parliament increased steeply when we learnt a few days later that one of the Commissioners had resigned for “personal reasons”, which phrase, as we all know, is often employed as a euphemism to avoid disclosing the real grounds openly. Whilst the justification given may have been of a broadly personal nature, the public are not so credulous as to accept that explanation at face-value. In any case, “personal reasons” could cover a great deal of ground, such as a fear of having one’s honesty and integrity impaired in the eyes of one’s peers and the public by giving the mistaken impression of ignoring, collaborating in or condoning improper acts committed by a co-worker, colleague, employer, client, superior or, for that matter, anyone else.
Subsequently, in an interview given by the Director General of the Commission to the SUNDAY OBSERVER of 7 June 2015, she “admitted that there was a strong difference of opinion between the members of the Commission over the Chairman’s move to meet the Speaker”. Hence, our original suspicion that that the “personal reasons” referred to above must have meant something with more worrying implications was clearly well founded.
The Chairman of CIABOC has very wide powers, somewhat similar to those of a judge of our courts. It is, therefore, natural that the standard of judicial conduct maintained by the Chairman should not be inferior to that of a judge. Now, as far back as 2005, and again in 2010, the Citizens’ Movement for Good Governance (CIMOGG) appealed through the Press to have Parliament formulate a code of conduct for judicial officers and recommended that the said code should be based on the Bangalore Principles of Judicial Conduct, which had been drafted by judges from over 30 countries, taking into consideration the contents of many existing codes of conduct and international instruments (www.cimogg-srilanka.org). The citizens of this country are entitled to expect that not only the Chairman but the other Commissioners of CIABOC would also abide strictly by these well considered and established principles, pending their formal adoption.
We have recently become aware that the Chairman had, at a meeting of the Commission, tried to justify why he had gone to Parliament in response to the Speaker’s request. He had claimed that he had gone to see and help the Speaker, who was apparently in a difficult situation of an undefined nature. He had asserted that he had done so as a friend and former classmate of the Speaker, and not in his capacity as Chairman/CIABOC.
As a body dedicated to promoting good governance and the Rule of Law, it is our position that the visit of the Chairman to interact with the Speaker was totally incompatible with the high degree of rectitude required of him in terms of accepted principles of judicial conduct. The fact that he and the Speaker are friends of long standing only makes his excuse all the more unacceptable.
An accusation made against the Chairman is that he had himself examined a petition filed against him and declared himself “clean”. This charge, which indicates that the strict procedures normally followed by the Commission’s administrative machinery had been breached, has not been denied either by the Chairman or the Commission.
In these circumstances, in the interests of maintaining high standards of conduct in what is one of our most important institutions, we call upon President Maitripala Sirisena to urge the Chairman to relinquish his position forthwith. Indeed, it would be to the benefit of Justice Balapatabendi if he were to send in his resignation before he is asked to go so that his name and reputation may not suffer further damage.
Assuming that the Chairman will find it prudent to agree to go, as we believe he should do, the President (on the advice of the Constitutional Council, if it is functioning effectively, or on his own initiative) must look around urgently for replacements for both the Chairman and the Commissioner who resigned “for personal reasons”. It strikes us that it would be advantageous, if at all possible, to re-appoint the latter, if he could be persuaded to accept a position, either as a Commissioner or even the Chairman, not only because he is already quite familiar with the structure, personnel and procedures of CIABOC but, more significantly because his resignation some weeks ago is proof of his strong attachment to judicial propriety, which is an absolutely fundamental qualification to be a Chairman or Commissioner of this vital institution.
Solving this problem needs to be given high priority because the public must be reassured as soon as possible that CIABOC will carry out its work freely and justly, and that it will be insulated from unwelcome and unlawful pressures from any quarter whatsoever.
(The writer is President of CIMOGG, the Citizens’ Movement on Good Governance)
Courtesy The Island