Why the removal of Bribery Chief spells disaster for good governance

Transparency and good governance are key to the progress of any country. In today’s context, growth and prosperity of a nation are strongly linked to an anti corruption environment. It is now globally accepted that the establishment of an strong and independent anti corruption commission is one of the strongest tools of establishing good governance and minimising corruption.

The present crisis created as a result of the removal of the director general of the Commission to Investigate Allegations of Bribery or Corruption (hereafter the Commission) is extremely relevant to the debate on good governance and anti corruption discourse in the country and thus Transparency International Sri Lanka (TISL) releases this position paper for public awareness and debate.

The present Commission was the successor to the previous Department of Bribery established in 1954.

The Commission was established under Act No.19 of 1994, having been unanimously passed by parliament consequent to a series of events leading to a change of government in 1994. The discussions of having an independent commission was mooted following the then bribery commissioner, Nelum Gamage, being removed arbitrarily by the then president in late 1993. The then opposition in its election manifesto for the 1994 general election pledged that Gamage would be reinstated after they came to power and that an independent anti corruption commission would be established within six months of assuming office, to freely investigate corruption in the public sector.

After assuming office, the Chandrika Bandaranaike government presented two Bills (titled "Commission to Investigate Allegations of Bribery or Corruption" and "Bribery Act Amendment") which were unanimously adopted by parliament. The significant changes brought by these two statutes could be summarised as follows:

The operation of the Commission was not without challenges from its inception. One of the first commissioners, P.M.W. Wijesooriya resigned on July 14, 1995 due to a lack of skilled personnel for the Commission to carry out its work and the delay in the submission of the first report of the Commission to parliament.

The government is reported to have turned down the request of the Commission for funds to send a team for investigations abroad in 1995. An apparent rift between the remaining commissioners were subsequently used by the President to send a letter dated November 26, 1997 requesting the remaining commissioners to resign, which was however turned down by the commissioners.

The Kumaratunga government also withdrew the entire strength of police officers attached to the Commission thus crippling the entire Commission. After the retirement of the then secretary, S. Ganepola, the government did not replace him with a fresh appointment. Another issue always raised was the lack of clarity of the role of the director general, especially in regard to the powers of decision making.

The experience since 1994 proves beyond doubt that the applicable law was not properly understood at the stage of the enactment (instead it was hurriedly passed). However an examination of the statues, annual reports of the Commission and the observations of the working of the Commission would no doubt reveal the following major systemic issues which negatively impact the effective functioning of the Commission.

The present Commission has in fact done a great deal to draw the attention of the authorities to address these issues in numerous ways.

Since the inception of the first Commission, its operation was not continuous as pointed out below:

Notwithstanding the systemic problems, with the appointment of the present commissioners in March 2005 the Commission became more visible in the public eye. The Commission has also established strong links with regional anti corruption bodies such as OECD-ADB anti corruption initiative and the world renowned national anti corruption commission of Hong Kong known as Independent Commission Against Corruption (ICAC). The last annual report of the Commission states that there is certainly an upward trend in successful investigations and number of prosecutions.

The Commission has to some extent developed necessary infrastructure and given vital exposure to some of the staff members specially those in the legal branch. Following the global experience, the Commission has also linked with civil society organisations and other professional bodies with a view to minimising corruption in Sri Lanka thus seeking wider support for its anti corruption efforts from various segments of society. The Commission has also participated in many important national and international anti corruption events.

In an unprecedented move, on November 15, 2007, C.A. Premashantha, (a police officer) who was the officer in charge of the Asset Division was transferred out of the Commission without any consultation with the Commission. It appeared later that the director general had objected to this move.

It is reported in media that on February 18, 2008, the Secretary to the President had summoned the Director General of the Commission and requested him to resign, which he had refused to do. The very next day, he was transferred to the Presidential Secretariat by a letter signed by the President himself. This has raised the attention of the media whilst being also raised in parliament. However, neither the President nor the government has so far disclosed to the public any reasons for the transfer.

The Chairman of the Commission has been reported to have (report in the Sunday Times) stated that the Commission had not been consulted by the President prior to the removal of the Director General.

The letter of removal dated February 19, 2008 signed by the President himself states that the Director General is transferred out of the Commission in order to facilitate restructuring of administration of the Commission and that Piyasena Ranasinghe is transferred to the Presidential Secretariat with immediate effect.

In a separate letter on the same date, signed by the Secretary to the President, a deputy DG, Luxmi Jayawickrama has been appointed as acting director general until a permanent director general is appointed.

The legal provisions contained in Act No.19 of 1994 relating to appointment and removal of the Director General are set out below.

S. 16(1) The President may, in consultation with the members of the Commission, appoint a Director General for the Prevention of Bribery and Corruption, to assist the Commission in the discharge of the functions assigned to the Commission by this Act.

16(2) The salary of the Director General appointed under sub-section (1) shall be determined by Parliament, shall be charged on the Consolidated Fund and shall not be diminished during his period of service with the Commission.

In fact the question as to whether the President is required mandatorily to consult the Commission prior to appointment was resolved previously and a convention was created since the inception of the commission, when the first Director General, Nelum Gamage was appointed. There are no specific provisions in the said statute on removal of the director general. There are no specific provisions in the said statute on removal of the director general. However the Interpretation Ordinance states as follows:

"Where in the case of any appointment authorised by any law, provisions is not made by the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978, or by any other law, as to the authority by whom the appointment is to be made, such appointment may be made by the Minister or by an officer authorised in that behalf by the Minister."

However, the appointment of the Director General is not made by a Minister but by the President and ex facie, this provision has no application to the office of the Director General. Even assuming that the President is considered a minister for the purpose of argument, then the same procedure must be followed — i.e. any removal must be only after consultation with the Commission. In fact in all previous cases of removal of the DGs, the commissions have requested the removal of DGs and never before was a DG removed by the President unilaterally.

The question then arises as to how a corrupt director general is removed? The Commission is however not precluded from investigating into the conduct of the director general. The current issue is an eye opener for the policymakers to examine without delay the necessary remedial measures, having regard to well established global practices.

The Secretary to the President is reported to have said that the President does not have to give reasons to remove any one in the Commission. This is perhaps as dangerous as the removal itself. Does it mean that, for bad or mala fide reasons a director general can be removed? This is certainly not the legal position. In the leading case of Nethsinghe vs. Wickramanayaka Justice Mark Fernando has extensively dealt with the law governing the removal of public officials including the board members of corporations. The court held that the removal is reviewable by courts and no one can be removed without assigning reasons or following natural justice.

The absence of contemporaneous public statement from the President’s office suggests that there may not be sufficient grounds to remove the Director General. Pointing the finger at the President by the public in these circumstances is unavoidable and that may not be healthy both for the President as well as for the Commission.

The transfer letter has indicated that the transfer is to facilitate restructure of the Commission and that Luxmi Jayawickrama has been appointed to act as director general. If the restructure of the Commission was legitimate the Commission should have played a key role in this regard.

This reminds us that even in November 1997 when President Kumaratunga wanted to remove the commissioners, she wrote a letter addressed to them stating inter alia "a complete overhaul of the Commission is a necessity in order to make a fresh start." As far as TISL is aware there is no move to restructure the Commission immediately. TISL is however not aware whether there was in fact any breakdown in the Commission due to internal administration. Secondly, (Ms) Jayawickrama is the second senior officer in the grade of Deputy Director in the Commission. (Ms) Mallika Liyanage is the most senior Deputy Director General. The basis of selection of Jayawickrama by the President’s office is yet another mystery.

There are serious repercussions following the removal of the Director General. They include the following:

In the absence of a specific procedure to remove the Director General, the policymakers must consider the global good practices in similar situations with the sole objective of preserving the credibility and integrity of the anti corruption Commission rather than individuals holding positions. TISL believes and suggests that if the present structure is to continue, both the appointment and removal of the Director General and other key officials should be done by the President upon the recommendation of the Constitutional Council in consultation with the Commission.

The provisions must be designed to prevent firstly, the possible manipulations by corrupt elements to rid a good and effective Director General and secondly, to make sure that no person with any allegations holds this position. Until such provisions are incorporated in the law, the appointing authorities should respect fundamental principles of good governance in such appointments — hence to create a healthy practice.

TISL firmly believes that the present course of action followed by the President’s office does not build confidence either on the President, his government or on the Commission itself. It has already created irreversible bad precedence. Thus the onus is on the President to restore the status quo.

Sri Lanka is a party to the United Nations Convention against Corruption under which Sri Lanka is required to strengthen the independence of the anti corruption Commission. Sri Lanka has also ratified the regional anti corruption initiative called OECD-ADB Anti Corruption Initiative, which was ratified by almost all the countries in the Asian region. The act of removal of the Director General may be perceived by the public as interference by the President on the independence of the Commission and therefore there is a heavy burden on the President to dispel such interpretations.

If the President or any other person has in his/her possession material to substantiate allegations against any official of the Commission, those materials should immediately be submitted to the Commission by the President or any outsider deciding on the issue following the rules of natural justice. Thus, following good global practices, a transparent and accountable internal complaint and inquiry mechanism should be introduced to the Commission. In such instances, some countries have introduced strong internal disciplinary mechanisms.

At present the absence of a review on operational aspects of the Commission is a major lacuna. Had there been a transparent review mechanism of the operational aspects within the Commission, both to review its operations and efficiency, there would not have been any room for false allegations by political authorities or any other source. Thus TISL believes that it is time that the Commission considers a suitable review mechanism, similar to that is accepted by the Independent Commission Against Corruption in Hong Kong.

TISL concludes that many of the issues raised here sufficiently stress the need to reconsider the structure and the mandate of the Commission while ensuring the financial support to generate independence of its operations without being dependent on any of the branches of the Executive. However, there is no alternate to the political will or to the need of officers with integrity to function in the Commission effectively.