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Wednesday, November 30, 2022

Will Sri Lanka bring its ‘political untouchables’ to justice in our lifetimes? – Kishali Pinto Jayawardena

His reference was to jail sentences of respectively twelve and ten years, handed down by Malaysian courts on former Malaysian Prime Minister Najib Razak and his wife. Long considered as Malaysia’s ‘untouchables’ due to the immense political power and influence that they wielded, Najib’s conviction of multiple counts of graft and corruption, was upheld by the highest court in August this year. A most striking charge related to transfers to his personal accounts of close to USD 9.8 million from SRC Inter-national, a former unit of a state development fund, 1MDB (1 Malaysia Development Berhad).

“We put our untouchables into jail’, a senior Malaysian advocate told me proudly in Kuala Lumpur last week.

A month later, his wife was convicted of ‘soliciting and receiving bribes’ to help a company win a USD 279 million project. She also faces charges of money laundering and tax evasion. What my Malaysian conversationalist was too polite (or perchance too merciful) to ask me was, why Sri Lanka could not have followed suit in regard to its own ‘untouchables’ in politics? Probably that question need not be asked, this country’s bankruptcy and the continuing painful financial crisis that has beggared its popu-lace, answers that unspoken question all too eloquently.

Whatever it was, I was glad that I was not called upon to answer that question left hanging in the air. After all, there is a limit to being acutely embarrassed due to the accident of being saddled with citizenship of a nation that, not only allows its grand political crooks who rob the public purse to escape unscathed but also sings paeans of praise in their name as Sri Lankan voters did (and some, probably still do) until the bubble burst in their astonished and crest fallen faces. But the point is that, Malaysia did not have spectacularly fine laws that enabled the convictions of Najib and his wife.

Strong investigative and judicial systems needed

Its anti-corruption and money laundering laws, including its Anti-Corruption Commission Act  are well drafted but not more so than any other legal regime. Impunity reigned here in regard to the politically powerful, the charges against Najib in regard to siphoning funds from IMDB surfaced midway through his term (2009 to 2018) but he continued unfazed. In fact, for years, I had heard Malaysian activists and lawyers referring to this case in familiar tones of helplessness, ‘he will never be caught’, ‘he will get away’ they said. But finally, ‘he was caught’ and ‘he did not get away.’

The difference here was, the strength of its investigative and judicial systems, to put the matter bluntly.  The panel of five judges headed by the first female Chief Justice exhibited extraordinary courage in persisting with their hearing of the case despite politically engineered tactics of protest and various legal strategies inside the courtroom, including an objection raised to the chief justice hearing the ap-peal. That persistence was all the more noted as both the conviction and the dismissal of the appeal came in a context where Najib remained politically powerful.

The affirmation of the conviction on seven charges of gross corruption by the judges was unanimous and strongly voiced. ‘We agree that the defence is so inherently inconsistent and incredible that it does not raise a reasonable doubt on the prosecution’s case;, they said. The convictions were wel-comed by the public and by the Bar Council, members of whom had been charged with sedition for speaking out against the former Prime Minister.

Diabolical lies and Sri Lanka’s anti-corruption laws

In contrast, can Sri Lanka speak to a single conviction of a political ‘shark’ under its anti-corruption laws? No. That list of failures range from a UNP Minister who admitted to recieving bags of cash to his apartment from unnamed sources in the sorry backdrop of the bond scams of the Central Bank under a Wickremesinghe-led Government in 2015 and 2016 but said that he had no idea from where those emanated. This has visible similarities with Najib’s defence which was to the effect that the hundreds and thousands of dollars in his personal account was from an unnamed member of the Saudi royal family.

And then we have (how can we forget?) multiple corruption scandals of the Rajapaksas and their acolytes, a few of which have been prosecuted in foreign courts, named in the Panama Papers and the Pandora Papers. None of the much vaunted corruption drives of the ‘yahapalanaya’ era went anywhere, sabotaged from the very top even as anti-corruption advocates looked the other way. Later, criminal investigators landed in jail as a ‘thank you’ card for their efforts.  Now, to add insult to palpable injury, now we have an unappealing drama of a ‘new’ anti-corruption law as, the Justice Minister un-convincingly says, existing laws are not strong enough.

That is a lie and a diabolical one at that. Sri Lanka’s draft Anti-Corruption Law aims to replace three key statutes, the Bribery Act, the Commission to Investigate Allegations of Bribery or Corruption Act and the Declaration of Assets and Liabilities law.  But the problem lies in the politicisation of the primary prosecutorial and investigative agencies tasked with the implementation of the provisions of these statutes. That being the case, what new factors will emerge as the result of yet another law?

Sri Lanka’s missed opportunities for change

True, Sri Lanka’s legal anti-corruption regime must be strengthened. The existing legal framework would have well served the purpose if the country’s criminal investigative and judicial systems had stood up to the challenge or more to the point, had been allowed to work unimpeded by political in-terference at the highest levels. Cases against politicians of all ranks, in some rare cases, even judicial officers, have gone precisely nowhere. A crucial problem has been the absence of a dedicated and ‘independent’ police force akin to anti-corruption units elsewhere.

Indeed, similarities in regard to endemic political corruption in Malaysia and Sri Lanka and reform opportunities which were presented to both countries at different periods of political transition, are interesting. Those factors go beyond the measly 2.87 million Sri Lanka rupees (LKR) found in Najib’s residence amidst stacks of foreign currency, valuable paintings, luxury handbags and jewellery when the police conducted surprise raids following his election defeat in 2018.

His 2018 election defeat was akin to the Rajapaksas’ defeat in 2015. As much as the Rajapaksa political project fashioned its power base on triumphant but hollow trumpeting of the victorious Sinhala-Buddhist identity, the United  National Malay Organisation (UMNO) championed the Malay identity as its rallying call. The reformist (if one can call it so) regime under the umbrella of an uneasy coalition that came into power in 2018 toppling Najib was led by Malaysia’s grand old man of politics, Mahathir Mo-hammed. Its impetus was short lived; like the ‘yahapalanaya’ coalition of 2015-2019, it soon unraveled, leading to the return of UMNO.

Sri Lanka’s endemic failures of justice

Yet Malaysia succeeded at least in one emblematic case of bringing a gross corruptor and his wife to justice while Sri Lanka failed miserably on all counts. Again, the difference here lies in the strength of national institutions to withstand political pressure. Defeats may be many but victories remain slim. Insofar as Malaysia is concerned, Najib’s conviction is not the end of the story. His UMNO is predicted to retain significant power in the coming elections next month.

Najib expected to fill the role of a master puppeteer from jail. Speculation remains regarding a poten-tial pardon from the king, a constitutional monarch in that country. Even so, there is at least this one singular and spectacular victory against the political regime that Malaysian anti-corruption crusaders can point to.

Can we say the same in Sri Lanka in our lifetimes?

ST

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