By Shaahidah Riza-2017-11-05
The laws that govern the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) are archaic, thus measures have been taken to introduce amendments, said Director General of CIABOC Sarath Jayamanne, who has been in office for nearly a year following the controversial exit of the previous Commissioner General, Dilrukshi Wickremesinghe. In an interview with Ceylon Today, which is also his maiden interview with the media since assuming duties, he noted that he prefers to maintain a low profile and focus more on the gamut of internal issues that plague CIABOC. Jayamanne added that he spent his first year studying CIABOC and its corresponding laws, and is now working towards amending laws to expand the mandate of the Commission.
Following are excerpts:
CIABOC only considers corruption and bribery that take place in the public sector. Why is the private sector not considered?
A. You must first look into the history of CIABOC. We were given the basic criminal justice system by the British. They ruled our country for 133 years. The first piece of legislation they gave us with regard to criminal law is the Penal Code. In the Penal Code, there are certain provisions on bribery. In the 1950s there was a lengthy debate at the Legislative Council, because there were various accusations soon after the World War II, indicating that there was a scarcity of food and other items. Therefore, the Price Control Act and similar legal instruments were introduced. Price Control Inspectors had a lot of power. In addition to that there were certain allegations against the members of the Legislative Council. Then they thought provisions with regard to the Penal Code in the legislation are not sufficient.
Thus, they introduced a new Bribery Act, in 1954. That Act was there till 1994. In 1994 a major amendment was brought into the substantive bribery law, in addition to that the Bribery Commission was introduced. In 1994, it was the Bribery Commissioner's Department which used to conduct investigations and send the dossier of investigation to the Attorney General. It was the Attorney General who used to take a decision whether to prosecute or not. On the eve of the 1994 general election, the opposition, especially Prof. G.L. Peiris took an undertaking that once they come to power they will introduce a Bribery Commission. Within two months of coming to power they introduced a new Bribery Commission, which was vested with the power to conduct investigations. Not only that they also got the power to indict and prosecute.
Earlier, it was the Attorney General who used to decide. The AG functioned under the Ministry of Justice. In the Bribery Act, in the good old days those who drafted it assumed that it was the public servants who were involved in bribery. Even in 1994, when the Bribery Act was amended they had never thought to encapsulate the private sector. To date this law still exists. In most of the countries they consider the fact that the private sector employees can also be involved in bribery. For example, if they abuse power, seek any kind of gratification in those countries that would amount to bribery. There is a general notion that is the private sector that encourages the public sector to accept bribes. Most countries have included private sector bribery. In addition to that we became a party to a most vital documentation called United Nations Convention Against Corruption, which we ratified in 2004.
There is a provision in that indicates that each State party that undertakes to introduce private sector bribery. Unfortunately, there is hardly any media discussion on it. That does not mean that the private sector employees do not take bribes. Maybe it happens at a high level, but no one talks about it. Certain people make representations to us that we must introduce private sector bribery. In Malaysia and Hong Kong 40 per cent of cases come from the private sector. If we were to introduce provisions to tackle private sector bribery at once, we may have a difficulty due to our infrastructure and human resources. But that does not mean that we shouldn't introduce it.
At what point will laws be amended and implemented? Is this the right time?
A. Yes, the opportunity has come, and we must introduce it, but we will have to decide the day of implementation. It is not necessary to implement the day it is passed in Parliament. That can be deliberated later. But I am setting the foundation to change the laws. They can include a section in the legislation indicating that the relevant minister or the President can decide when it should come into operation. That is legally feasible. This month I will be completing one year in office. I looked at where we had gone wrong. If you look at 1994 and up to now, only in four cases the accused in corruption cases have been convicted. There are enough cases.
What is bribery and corruption? In the past when a public servant wants to do a service he directly asks for a bribe. With the passage of time, they thought that if they accept bribes then they could be arrested. With technological sophistication, the erudite and intelligent senior public servants including politicians they don't accept bribes in the traditional way. In most cases they will get caught red-handed. We can conduct raids. Once we conduct raids they are exposed within 24 hours. They are produced before the Magistrate. Then it became public news because he was caught red-handed. It is very straightforward. Over the years they have become very clever. So, they accept bribes to be seen by others. They have sophisticated methods to accept bribes due to technology. They can transfer money to any part of the world. It won't remain in our shores. According to our sovereignty principal, we can do investigations only that which takes places within our territory. Our mandate is limited to three offences, bribery, accumulation of wealth that is unexplainable, and corruption. Those relating to financial crimes have a gamut of offences, including, cheating, criminal misappropriation, forgery, and offences under the monetary law.
We don't have those powers as they are vested only with the Police. Criminals are not static, they also develop. If they give money to their kith and kin, we can find them. But if they give money to an unrelated third party, then we cannot find them. We don't have the mandate. So, the offence of money laundering was introduced. However, CIABOC does not have the power to investigate into money laundering. When you conduct investigation into corruption, invariably evidence related to money laundering comes up. A public servant is sometimes connected to private entities. If we have to conduct investigations into bribery and corruption we must be able to investigate money laundering as well. The Bribery Commission Act must be amended.
The Financial Crimes Investigation Division (FCID) and Criminal Investigation Department (CID) have the power to conduct investigation into money laundering. However, they don't have the power to investigate bribery and corruption. In 1994 when CIABOC was introduced for the first time we were given two commissioners. Two have to be judges from the Supreme Court. The third person has to have expertise in investigation. The legislators thought that the new government might have earmarked the bigwigs in the previous government, so that is why they thought investigation of serious fraud must be protected. They should not divulge it to anyone. There must be secrecy laws. Hence Section 17 came into place. The moment we divulge, we commit a criminal offence. That is why people in this country do not know what we are doing. We were given this provision to protect the witnesses. There are pros and cons. Because of that no one knows exactly what is happening. The situation is different with the Police. The disadvantage is that we have one case, but several institutions are conducting investigations. The FCID is also doing investigations, and so is the CIABOC. We can't even talk to each other. That complicates a lot of things. They record the evidence of the same witness. It's a waste of resources and it leaves enough contradictions for the defence counsel to play havoc in Court.
What steps are you going to take to counter these issues?
A. I travelled to many countries. Our laws are outdated and there is a lot of bureaucracy. Laws are archaic and they are not in keeping with the present day requirements. There has to be vital amendments we want to investigate money laundering. We must have the power to share information with other agencies who are conducting similar investigations. Sri Lanka is the only country that cannot get any opinion of views or at least observation from the Attorney General. All other countries during the course of the investigation and all other countries AGs and public service representatives are there with the investigators. They are not in charge of the investigators and they guide the investigators. For the past 20 years we can't even talk about investigations.
Legal provisions indicate that CIABOC can recruit any lawyer outside the office to conduct investigations. But no defence counsel would ever come here. Under that section we are inviting the AG only to prosecute. This is ridiculous. How can he prosecute, when during the investigation he has never seen the colour of the case? If we want the Attorney General to prosecute, can we force them not to look at the investigation? One of the amendments I want is that, although we will keep our legal officers, at least during the investigation we must get the observation of the AG. We should recognize their role.
If you ask me as to why politicians are not convicted, it is important to know that conviction is beyond our powers. We are doing our best with cases. All the cases are ongoing. Former President of Nigeria siphoned all his ill gotten money to western countries.
It took 17 years to recover it. These investigations take time and resources. We don't have enough legal or administrative resources. That is why there is a massive backlog of cases. We don't even have CIABOC branches. Unlike Police we have only one CIABOC for the entire country. Legally, when we see that someone has acquired wealth that cannot be explained, we have to allow them to justify their wealth. Even this takes time. We need to find evidence.
We have to strengthen the commission. So we are going to recruit more experts following discussions with the management services department. We are hoping to recruit 200 experts. In our first phase we will recruit 50 and so on. We will soon have lawyers, technology experts and legal experts. Our focus is to catch the accused, collect evidence, prosecute, and prove the case beyond reasonable doubt.
Bribe givers and takers are both criminals, aren'
t they?
A. Technically, yes. But without the support of the giver, the prosecution cannot prove the case. In our law a confession made to a Police officer is not evidence. A bribe giver commits an offence, but generally we cannot prosecute him. The bribe giver becomes a witness. That is why the Court says that the bribe giver also might be a party, so the prosecution would need additional corroborative evidence.
Has the Right to Information (RTI) laws made things easier for CIABOC?
A. RTI laws in general have made a big impact in the country. What is most important is that you have to be transparent. Bribery and corruption take place when we have secrecy in public transactions. I warmly welcome the RTI. It prevents public servants from doing their business in secret. In other countries when you get public service, they don't meet the client one to one, face to face. They do it electronically, and if they are not technologically savvy, they get an officer to help. Even the media play to the gallery. When a public servant gets caught they question as to why "the poor public servant" was given a major sentence, and question as to why more sophisticated crooks are not punished. But they must be convicted.
If you take an ordinary public servant who takes even a small amount of bribe, you must always see who the victim is. There is always a victim or a loss to the state. The victims are always the poor. If we don't prosecute these people, what will become of the future of those victims? See how they struggle to admit children to schools? They are treated unfairly. The media shouldn't judge the case by the amount the public servant has taken, but they must consider who the victim is.
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