The Director General of the Commission to Investigate Allegations of Bribery or Corruption (CIABOC), Sarath Jayamanna PC in an interview with the Sunday Observer, outlines the challenges faced by the Commission and its future plans to set up a robust prevention mechanism to eliminate bribery and corruption in the public sector. He says, the CIABOC is also eying Sri Lanka Cricket and the private sector in its cleanup campaign.
Excerpts:
Q: The slow pace of investigations and prosecutions are major challenges weighing down on the CIABOC at present. Do you think the planned Anti Corruption Courts will help ease this situation?
A: There is a huge backlog of court cases. A research done by a committee headed by a Supreme Court Judge sometime ago found that even a criminal case takes at least 10 years to conclude without the process of appeals. The moment you send a criminal to court he will not have a chance to commit a crime.
Yet, to ensure justice the cases must be dispensed with as soon as possible, though after several years, there will be some kind of sympathy built up towards the accused and the family. So you must have an effective, robust system, to conclude the case within a year. Other countries have such systems.
When it comes to corruption cases, we cannot drag them. Unfortunately, we have not had any separate courts for very complicated corruption cases or financial crimes. Such cases are loaded in courthouses together with the other cases. Corruption is a serious offence introduced in 1994, the sentences for which can go up to ten years. Frankly speaking at the Magistrate’s Courts, the judges are new, lack necessary environment and there is a large case load. Therefore, the complicated bribery and corruption cases continue to be postponed. The other reason is that the suspects in these corruption cases are quite competent and retain the best counsels for their cases. As a result they raise various legal objections before even the trial begins, and the Magistrate sometimes takes years to give a ruling on these preliminary objections.
With the new Judicature Amendment Act the purpose is for serious corruption, bribery and asset cases, to be heard in a separate trial at bar, before three Supreme Court judges. It is a timely action. According to law these cases cannot be postponed without a justification, and have to be heard without a break, until their conclusion. The less serious cases will be heard in the High Court. The Magistrate’s Courts will also have jurisdiction to hear minor corruption cases.
There is another important amendment before Parliament now, to amend Section 70 of the Bribery Act, seeking a single judge in the High Court to hear corruption cases.
Q: There is a notion among the general public that only the small fry get caught in bribery cases while the big fish go scot free. Anything being done to change this situation ?
A: The perception of the public from their point of view is reasonable. There is no discourse on this issue in the country. Unfortunately, the media play a role in creating this perception. Who are the big fish involved ? The witnesses and the victims of the major bribery cases are also big fish. They must come forward to prosecute the big fish. If they don’t take part in the raid and assist us, we cannot catch the big fish.
In the recent case where the President’s Chief of Staff was involved, we were assisted by the aggrieved party. That is why the case was resolved in a short period. The elite business community must join hands with us to eliminate this menace. I invite them to take on this challenge. The CIABOC is operating 24/7.
I feel the ordinary villager and the urban middle class, have backbones. They come straight to us if a bribe is solicited from them, even if it be a minor case. Ninety nine percent of our raids involve such cases. On the other hand the loss to the country from petty cases are huge. So we should get rid of this small fry, big fish notion. Bribery in whatever form must be eliminated. Even in the public sector Bribery should be recognized and made an offence. That is what Lee Kwan Yu did in Singapore.
Q: Can we eliminate or at least minimize bribery from the collective public conscience?
A: I would not say we can do it 100%. But we can minimize it to a greater extent than what persists today. We must have an overall approach, a social discourse on this crucial subject. It is a myth to think that merely arresting the people and sending them to jail will be enough to fight bribery and corruption in the country.
Sri Lanka lags behind other countries in the region, we need social awareness, changing attitudes and a strong preventive system. Even in politics, the objective of a politician is to see their opponent being arrested and sent to jail. There is no collective effort or commitment to change the system.
But, after the recent high profile arrests there is this awareness and confidence in the system.
Q: What are the steps that can be taken to deter this culture ?
A: If you think the deterrents will help change this culture, I have to disagree with you. After the recent incident where a top government official was caught red handed, people should be discouraged to accept bribes, unfortunately, two weeks back we arrested an excise officer accepting a bribe of Rs. 500,000 and then an Engineer, as well as a Janapada Niladari in Kantale. They were not deterred by our high profile arrest. It shows, law enforcement is not always the solution to eliminate bribery and corruption. We have to eradicate the opportunity of taking bribes.
Q:What is being done to have a prevention law and how soon will it happen ?
A: One of my initial focuses since assuming duty last year, was to bring in a prevention law, we have studied all existing laws and presented a proposal to amend the existing laws ; the Bribery Law, CIABOC law and the existing Asset Declaration Law. Our Asset Declaration Law was first introduced in 1988. It has been static for the past 30 years.
In our country, private sector bribery is not an offence. Often government officers are encouraged to take bribes by the private sector. The Cabinet Paper to amend these laws was presented by the President and it has received their approval. The plan is to set up a prevention unit within the Bribery Commission.
In other countries each government department is required to come up with a prevention strategy, there should be an integrity officer to identify vulnerable areas and reasons. That strategy will then be guided and supervised by the State Anti Corruption Agency. In Malaysia, every government department is profiled in bribery and corruption indicators and given a ranking. If the department comes down in the ranking, certain amounts of the budgetary allocations the next year are reduced.
Bhutan’s anti corruption world ranking is 26, Singapore 6, Hong Kong 13 and Sri Lanka stood at 95 till last year, and has come down to 91 now. But we have a long way to go.
Q: What is the progress of formulating the National Action Plan aimed at strengthening prevention and enforcement mechanisms of CIABOC?
A: This government came to power pledging to end corruption. I don’t think the government at that point had a philosophical idea on how to do it. We are bound by this pledge to the people as well as our undertakings to UN systems, GSP + trade concessions, Open Government Partnership (OGP) to come up with an Anti-corruption National Action Plan.
We have been given this additional responsibility, to draft the National Action Plan.
The Wold Bank and USAID is extending assistance for this endeavour. We are currently conducting islandwide public consultations, and this week we will be visiting Jaffna. For the consultations 100 public servants and 25 civil society members are invited. It will be an exhaustive document covering all sectors including the Procurement, Auditing, Government Finance and the Role of public representation. Solutions to existing problems will be listed out. The first such meeting of the National Action Plan was held in Colombo on June 3, on the day of the landmark bribery raid by CIABOC officials in Colombo. On June 26, we will summon government departments with serious allegations of bribery and corruption, to discuss how to rectify this issue. Later on we will meet the media and the artists separately. Thereafter, we will set about to prepare the National Action Plan.
Q: What about whistle blower protections ?
A: It is already there in Witness and Victim Protection laws. But there are concerns that the existing law is not enough. If a complaint is made to a law enforcement officer, there should be no disciplinary action against a public officer but if the complaint is to a disciplinary officer, the law is silent and does not provide clear protection. We need to revisit this area too.
Q: What are the factors that currently hamper your investigations, do you feel political interference is a challenge?
A: The CIABOC needs skilled experts in the field of auditing, financial crime, digital forensics, engineering, banking, bond transactions and financial security. Another crucial factor is, being tied to public sector rules and regulations. We don’t have any political interference but having to depend on Public Service and the Treasury on all trivial official matters is a great hindrance. CIABOC must be given independence in that sense.
We have only 200 investigators and 29 legal officers to cover 21 million people. Hong Kong’s population is only 6 million but they have over 1,000 investigation officers.
For the last several months we have been fighting to get a pay hike for the CIABOC officials. I have been given the freedom to recruit 10 legal officers but the unattractive salary structure has been standing in the way. We need competent officials who can face experienced defence counsel in the courtroom. This is a challenge. We have got the green light to recruit 200 expert investigators and 50 prevention officers. It is a big achievement for the CIABOC. The vacancies have already been gazetted and interviews will be held in August.
Q: What are the parameters of ‘conflict of interest’ and gift giving to Public servants?
A: When we went to Bhutan to study their anti corruption mechanism, we took souvenirs for the officials as a goodwill gesture. When we tried to offer the souvenirs, they refused to accept them saying even such a gesture can be considered a bribe.
Even if they accept an official token, it has to be left in the office. In our country loads of hampers are delivered to public servants during festive times. Bhutan has printed guidelines for accepting gifts and conflict of interest. For example, under conflict of interest, a public officer taking part in a tender procedure must declare in writing that he has no connection with the bidders - in the past, present or future. So strong are Bhutan’s prevention mechanisms. We need such a system in place.
Q: In the aftermath of the recent allegations of match-fixing involving Sri Lanka, you have said that Sri Lanka Cricket will come under the Bribery Act ?
A: We are contemplating that. During a trip to Vienna,, we had an opportunity to take part in a side event on Sports Law and Match Fixing, during which we held bi-lateral meetings with a few countries and the ICC Chief to understand how they have tackled the issue of match fixing. South Africa has a specific law on match fixing, but in some other countries, such offences are caught under bribery laws. UN ODC and ICC is willing to help us in this respect.
Q: The Public Accounts Committee recently faulted the CIABOC, do you agree with their findings?
A: There were two points raised by the COPA, this relates to 2006. Every government department has to have an Audit Committee. We have requested an external auditor from the Public Administration Ministry, but it has not responded to our request. The other allegation is that at the end of 2006, we had not got rid of the excess items, this is a correct finding but after two months the CIABOC has done an auction and completed that obligation.
Q: What is the progress of clearing the backlog of Bribery cases?
A: In the entire history of the CIABOC, the most number of convictions has been recorded in the last three years. Last year there were 57 convictions and so far this year we have recorded 40 convictions.
Q: What is the progress of the case involving the President’s Chief of Staff ?
A: We kept it a secret for nearly three months. It shows how professional the CIABOC is. Investigations are continuing in the right direction. I cannot divulge anything more. We have not faced any political interference and moreover people are watching developments.
