While congratulating the Commission to Investigate Allegations of Bribery or Corruption [CIABOC] for releasing the Annual Report of 2002, despite the delay, it is our sincere wish that this report earns sufficient public response.TISL has seriously considered this Annual Report and for the benefit of the public decided to release the response by way of this memorandum.
The observations and responses of TISL below, corresponds to the title chapters of the CIABOC Report. The conclusions and recommendations of TISL are found at the end of the document.
Chapter titled-The Commissioners Review
This Chapter reveals an element of hostility from politicians and in particular the following:
(a)CIABOC believes that the allegations made against the Commission are baseless and if not for the legal constraints, they could refute all allegations.
(b)This Chapter refers to an attempt by the Parliament to curtail the lawful powers of the CIABOC under the guise of parliamentary privileges, when an inquiry was conducted against a Member of Parliament. TISL is of the view that the Standing Orders cannot be invoked to restrict the powers of the CIABOC in particular when the CIABOC is vested with statutory powers to investigate into the bribery allegations against parliamentarians. On the other hand, such an attempt gives rise to bad precedents against effective operations of the prime anti-corruption institute.
(c)The Commissioners have also suggested several legal reforms affecting the laws pertaining to bribery, corruption and declaration of assets/liabilities. The systemic weaknesses do not appear to have been considered in making the said proposals.TISL is of the view that these suggestions are hardly adequate to change the present complexion of the CIABOC or to make it effective.
Chapter 1- Introduction
(a)The CIABOC believes that the Commission is required to interact with the President in particular relating to the administration. While such interaction not being objectionable, having regard to the political partisan nature of the conduct of successive Presidents in Sri Lanka, TISL is of the view that all transactions with the President or President’s office should be transparent. Thus it is the responsibility of the CIABOC to ensure transparency and accountability in such interactions.
(b)It is encouraging that the CIABOC has disclosed the procedure followed by the commission in respect of investigations. TISL is of the view that the Commission should have valid reasons to vary the decision of the Director General. TISL also believes that if prosecutions are withdrawn after instituting such prosecutions, the Commission should publicly disclose reasons for such withdrawal.
Chapter 2- Prevention
(a)It is encouraging to note that an awareness campaign targeting public servants has been launched. Total number of 2434 officers have had the benefit of these programmes.However, there is no indication as to whether the awareness campaign was systemic and based on a well planned strategy. Commencement of a poster campaign and public advertisements is an indication of willingness of the CIABOC to reach the public. TISL sees this as an initiation that needs to be given high priority in the activities of the commission.
(b)The Report does not reveal any activity involving civil society during the period under review. TISL sees this as a weakness in the preventive strategy of the CIABOC, that needs to be addressed urgently.
Chapter 3-Complaints
Increase of number of complaints is a positive aspect for an anti-corruption body. However, 720 out of 2052 complaints were investigated and 393 files of them were closed after investigations. Total number of cases closed during the year is 1686.
Chapter 4-Investigations
(a)Total number of 93 accused have been produced in court. The Report gives a classification of different types of investigations but the category titled other is misleading and one cannot come to a conclusion on 28 investigations.
(b)The lowest number of investigations are in relation to Assets. Of the 96 complaints, only three asset inquiries have been concluded. TISL considers this as a major drawback especially in relation to powerful personalities who accumulate wealth by corrupt means.
(c)Numbers of pending investigations are drastically increasing but the Report does not disclose main reasons for such increase.It is reasonable to assume that insufficient investigators and lack of investigative skills are two of the main causes for this situation.
(d)The Report discloses an unsafe trend of accumulation of complaints which is likely to go out of control. 1111 complaints have been carried forward from the previous year. During the period under review, only 109 investigations have been completed while 2963 remains to be investigated. The commission does not seem to have a strategy to meet the situation to expedite the complaints. Based on the material, TISL concludes that the CIABOC does not have sufficient staff or an effective strategic plan to conduct prompt investigations into complaints.
Chapter 5-Prosecutions
(a)As at 1.1.2002, there were 107 prosecutions pending. In 2002, a total of 74 new prosecutions were entered. As at 31-12-2002, there were a total number of 129 prosecutions pending. No conclusion can be drawn from these figures except to state that there was an upward trend of prosecutions in courts.
(b)Cases concluded in 2002 saw 10 convictions and 25 acquittals and 2 discharges. This is certainly alarming. TISL believes that the CIABOC is responsible for high acquittals and low convictions. Though the reasons for this situation have not been given in the report, one can assume that lack of capacity, both in investigation and prosecution,may be the main reason for such a situation.
(c)During the period under review, there were few prosecutions against the CIABOC. Among them was a writ petition filed by the Institute of Human Rights seeking a writ of mandamus compelling the CIABOC to investigate into complaints made in respect of abuses of state resources during 2001 general election. The Report at page 19 states that this application was withdrawn and dismissed. For the benefit of the reader, TISL annexes the decision of the said case as an annexure to this report. (Please read the annexure)
(d)The position of the CIABOC is that the abuses of public resources during elections are not amenable to the jurisdiction of the CIABOC on the basis of the legal maxim generalia specialibus non derogant(special things derogate from general). They had also considered the fact that the complainant had also made representations to police and Election Commissioner. TISL views this as an extremely restrictive and unhealthy interpretation, which is not consonant with powers of a prime anti corruption institution of a country. The CIABOC has also failed to appreciate that the basis of complaints to the commission was corruption and the complaints forwarded to Election commission and police are to prevent abuses to have a free and fair election.The failure on the part of the CIABOC in that instance could be seen as an encouragement to election related abuses of state resources in Sri Lanka.
2.Human Resource Development
(a)It is unfortunate that the Report has failed to disclose the full cadre and classification of staff under each category.
(b)During the period under review, there were few workshops intending to enhance capacity of the staff in relation to specific areas. TISL is of the view that understanding of systemic issues pertaining to all aspects of corruption is necessary for the core staff. Thus continuous programme is necessary for the staff to obtain such systemic education. Exposure to effective anti corruption bodies perhaps will strengthen the capacity of the CIABOC.
3.Financial Management
(a)The Report does not disclose the allocations and the expenditure under its two projects (i.e. programme and civil administration). This has made impossible for a reader to come to any conclusion in relation to expenditure.
(b)The Report does not comment on the financial constraints despite that fact that there was a reduction of financial allocations (by Rs.3,692,200/-) compared to the previous year.Though activities have clearly expanded, the financial allocation has reduced! TISL sees this as a serious issue for the CIABOC. This strengthens the argument that the CIABOC should be more financially independent.
CONCLUSIONS AND RECOMMENDATIONS OF TISL
TISL is encouraged by the awareness campaigns launched by the CIABOC and positive increase of the number of complaints.
However, the Report 2002 reveals major issues warranting immediate attention of the CIABOC and the government;
(i)With the expansion of the activities of the CIABOC, it is necessary to increase financial allocations to the CIABOC. The Parliament should take serious note of this situation.
(ii) There does not seem to be an institutional development plan. Activities of the CIABOC is merely organizational and investigative. There does not seem to be a proper strategy in the implementation of its mandate. TISL firmly believes that CIABOC should develop an institutional development plan with stakeholder participation. This plan should address, inter alia, the capacity building of the core staff and effective awareness campaign.
(iii) It is also recommended that the Auditor General conducts a value for money (VFM) Audit in respect of the CIABOC.
(iv) The CIABOC should also take the initiative to ensure civil society participation specially in awareness programmes.
(v) There is a need to change the scheme of the statute with a view to making the CIABOC more independent and more vibrant. TISL sees the need to implement recommendations submitted by TISL earlier in 2003. (See …………… for the previous recommendations made by TISL)
(vi) It is necessary for the CIABOC to implement its mandate without restrictive interpretations of the law