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Bribery Commission: Hopeful childhood to corrupt adulthood

2014 Jul 30

By Niranjala Ariyawansha
 
Setting up independent commissions was the main aim of the 17th Amendment to the Constitution which was introduced to enhance good governance. The Commission to Investigate Allegations of Bribery or Corruption which was under the Ministry of Justice was re-established as an independent commission under the new Constitution. But the Mahinda Rajapaksa Government abolished the 17th Amendment to the Constitution on 6 September 2012 and with the 18th Amendment, the independence of the six independent commissions was severely compromised. The President is vested with the powers to appoint the commissioners for the commissions including the Bribery or Corruption Commission under the 18th Amendment to the Constitution. The situation has severely deviated the Bribery or Corruption Commission from its founding aims and objectives.
 

Lakshmi Jayawickrama, the Director General of the Bribery or Corruption Commission has been transferred to the Presidential Secretariat since 24 June. She has been replaced by Ganesh Dharmawardhana, former Deputy Public Trustee.
 

President of the Bar Association of Sri Lanka, Upul Jayasuriya, protested the transfer of the officials of the Bribery or Corruption Commission.
 

The Director General of the Bribery or Corruption Commission was transferred in the backdrop of the complaint to the Commission against its Chairman Jagath Balapatabendi which has remained uninvestigated for a period of seven months.
 

JVP MP Sunil Handunnetti filed the complaint against former Supreme Court Judge Jagath Balapatabendi over misconduct. In the complaint, the JVP alleged that Justice Balapatabendi tampered with documents, received kickbacks from an alleged vehicle dealer and illegally used the vehicle in question, bearing number KG 9321.
The complaint has been forwarded to the Attorney General's (AG) Department by the Commission, but has now allegedly been returned to the Commission by the AG's Department, which had allegedly said the matter did not come within their purview.
 

Revelations were made in this regard by UNP Parliamentarian Sujeewa Senasinghe in Parliament who alleged that the former judge had used a vehicle bearing number KG 9321 which was allegedly provided to him by a vehicle dealer – Harsha Prabath de Silva - whose case was heard before a bench on which the Judge was presiding.
 

Senasinghe, during the debate on the 2014 Budget, pointed out how the Bribery Chief had allegedly aided and abetted in the arrest of the former Director (Preventive) of Sri Lanka Customs over an alleged charge of bribery early last year, as a personal favour to one of his friends, the owner of Vehicle Lanka (Pvt) Ltd., Harsha Prabath de Silva.
He said that though an arrest has to be made when the bribe is being accepted, in the case of the former Customs Preventive Director, Ranjan Kanagasabai, bribery officials were not present at the time the bribe was purported to have been given, to positively conclude whether the bribe was accepted or not.
 

With this, the discourse on the Bribery or Corruption Commission's independence came to light again and many critics said the Commission had become a political tool of the government.
 

Commenting on this to Ceylon Today, well known diplomat and the activist of Friday Forum Dr. Jayantha Dhanapala highlighted the Executive Presidency as the main cause for the situation. "An irresponsible dictator can make such transfers under this system. The abolition of the 17th Amendment to the Constitution was the reason behind this. The 18th Amendment took back the independence of the commissions. Now, people are talking about abolition of the Executive Presidency and the transfer of the Director General is one good example that shows the importance of reactivating the 17th Amendment to the Constitution."
 

What is the 17th Amendment?
The 17th Amendment was introduced to enhance good governance amidst the problems at the tail end of the rule of former President Chandrika Bandaranaike Kumaratunga. The aim of the Amendment tabled in the Parliament on 17 October 2001 was to de-politicize the public institutes. It was passed unanimously with both Government and Opposition MPs voting in favour of it. It would have been a very good example of democracy if implemented properly but it was not.
 

Independent commissions was the main component of the 17th Amendment. Through them, appointments to the senior public positions were aimed to be done independently.
Appointments to the independent commissions was to be made through the Constitutional Council. The members of the Constitutional Council were as follows:
 

(a) the Prime Minister ;
(b) the Speaker ;
(c) the Leader of the Opposition in Parliament ;
(d) one person appointed by the President ;
(e) five persons appointed by the President, on the nomination of both the Prime Minister and the Leader of the Opposition;
(f) one person nominated upon agreement by the majority of the Members of Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belongs and appointed by the President.
Following are the commissions that came into effect under the 17th Amendment.
 

Independent Election Commission
Independent Police Commission
Independent Judicial Services Commission
Independent Public Service Commission
Independent Human Rights Commission
Independent Finance Commission
Independent Delimitation Commission
 

Two of these commissions, the Judicial Services Commission and the Independent Public service Commission, were already in operation but the President was the competent authority to appoint commissioners for these commissions. They too were made independent with this move.
 

The Bribery or Corruption Commission had been established under a Government Gazette on 28 October 1994 in line with the 1994 No. 19 Bribery or Corruption Investigation Act. The Commission functioned under the Ministry of Justice.
 

Fair appointments

The Constitutional Council made the appointment of the Chief Justice, the Judges of the Supreme Court and the President and Judges of the Court of Appeal, the Attorney-General, the Auditor-General, and the Parliamentary Commissioner for Administration (Ombudsman). The appointments needed to be approved by the President.
The 17th Amendment was praised by civil society as a positive move towards good governance. But what was the reason for discontinuing this move? Chairman of the Constitutional Committee of the Bar Association of Sri Lanka and Convener of the Lawyers for Democracy, Lal Wijenayaka, pointed out that the rulers had sneaked through the holes in the constitutional laws.
 

"The Constitutional Council proposed former Supreme Court Judge Ranjith Dheerasinghe as the Chairman of the Independent Election Commission but President Chandrika Bandaranaike Kumaratunga did not like him. She asked the Constitutional Council to propose another person but the Council insisted on Dheerasinghe. The President manipulated the Article stating that her approval was needed for the appointments and refrained from approving Dheerasinghe. The final result was that the Independent Election Commission was never appointed."
The mandate of the Constitutional Council was for five years and its re-appointment also became a problem. The JVP and TNA could not agree about the appointment of the representative of the minor parties in Parliament. As a result, the representative was never appointed.
 

"President Mahinda Rajapaksa made use of the situation and said, he would appoint his representative after the Opposition appointed their representatives. Finally, the Commission was not appointed," said Lal Wijenayaka.
Chief Justice's judgment
In 2010, considering a petition, Chief Justice Sarath Nanda Silva ruled that the Constitutional Council was defunct unless all ten members were appointed.
 

"The President again made use of this judgment and appointed the officials for the senior State positions, thus, destroying the independence of the commissions," Lal Wijenayaka pointed out.
Now the President makes all the appointments and transfers in the commissions. Commenting on the situation, convener of Anti Corruption Voice, Wasantha Samarasinghe, said, "90% of State income is public tax. The ultimate place the people could complain against misappropriation of public money was the Bribery or Corruption Commission. The Director General has been transferred with the aim of passing time without investigating the complaint against the Chairman of the Commission. The Bribery or Corruption Commission has no ethics even to inform the public about what has happened to the complaints we have lodged."
 

Regarding the transfer of Lakshmi Jayawickrama
The Director General of the Bribery or Corruption Commission said she was unaware of the reasons for the transfer.
"I knew that such things might happen. I had actually paid the last newspaper bill also," she said smiling. However, she declined to comment further.
 

Internal sources of the Bribery or Corruption Commission said the senior officials of the Commission were obstructing the attempts by the Director General to proceed with the complaints received. The former Director General had initiated investigations against several ministers and MPs of the government including Minister Mahindananda Aluthgamage who was accused of dubious acquisition of wealth.
Sources said that the Chairman of the Bribery or Corruption Commission, Jagath Balapatabendi, had issues with the Director General, Lakshmi Jayawickrama.
 

JVP MP Sunil Handunnetti said the Bribery or Corruption Commission had informed him that the complaint he had lodged against the Commission Chairman Jagath Balapatabendi could not be probed.
"The Commission had sent our petition to Attorney General Palitha Fernando. But he has informed the Bribery or Corruption Commission that the matter did not come within their purview," MP Sunil Handunnetti said.
Commenting on the ethical practices that the Chairman of the Bribery or Corruption Commission needed to follow, Dr. Jayantha Dhanapala said, "There is a practice in the world that a senior official resigns temporarily until the probe is finished when a serious charge is brought against the official. But Jagath Balapatabendi remains in the position. It is a disgrace. He was a Supreme Court Judge. Can a person of his calibre act like this?"
Transparency International, writing a letter to the President, asked the President to remove the Chairman of the Bribery or Corruption Commission temporarily and conduct the investigation. But the President did not even acknowledge receipt of the letter.
 

One may think in this backdrop that the government had in fact legalized bribery and corruption against the aims and objectives of establishing the Bribery or Corruption Commission.
 

Lal Wijenayaka said that the urgent transfer of the Director General of the Bribery or Corruption Commission had aimed at stemming her actions. "This is a move to undermine the probe. She was transferred to the Presidential Secretariat so as to shut her up. This move will further destroy public trust on the Commission. Then they will not complain to the Commission and they will also not trust judiciary action against bribery and corruption. This will lead to a social dilemma."
 

An internal spokesman of the Commission was quoted two months ago stating the number of complaints received by the Commission had decreased drastically.
 

Lal Wijenayaka highlighted that the people of the country had the right to know what was happening in the country. "The Executive cannot wield powers as they wish. People have vested powers to the Executive to use them within the Constitutional framework. Power is not a privilege. Power must be utilized for the benefit of the people. Appointing and transferring public officials is not the President's or the relevant official's personal affairs. People have the right to question them."
 

S. Ranugge of Transparency International stated that the Commission is defunct now. "The Commission only investigates cases against opponents of government bigwigs. They do not work in a legal framework. This happened after the President took over the appointments to the commissions. All the commissioners are granted tax free car import permits after three years. They wait for it and they do not want to lose it. This too is bribery."
Dean of the Law Faculty of the Colombo University, Dr. Deepika Udugama, said that the 18th Amendment to the Constitution was the reason for this situation. "This shows the dangerous nature of the 18th Amendment. The Executive could not act like this when the 17th Amendment was operative. The only solution that remains is mobilization of people against this," she said.
 

However, the Opposition remains dead silent although two weeks have passed since the transfer of the Director General of the Bribery or Corruption Commission.
 

"The Opposition did not speak about her transfer. It had to do so and it was the duty of the Opposition. The media are also responsible to raise their voices against such moves," said Dr. Jayantha Dhanapala.
 
 
The Bribery or Corruption Commission received a complaint several years ago against Minister of Ports and Ports Development, Rohitha Abegunawardhana, over the way he earned Rs 400 million. When media inquired about this from Commission Chairman Jagath Balapatabendi he replied, "Yes, I remember that complaint but I don't know what happened to it. It was a complaint lodged before I took the office."
 

June 2012
Plaintiff: Inter Company Employees' Union
Against Governor of the Central Bank of Sri Lanka, Ajith Nivard Cabraal, and the Board of Administration of the Employment Provident Fund (EPF) (pertaining to respondents acquiring stakes of 17 loss making companies owned by businessman Ajith Devasurendra at artificially bloated prices.)
 

2013
Plaintiff: Anti-Corruption Voice
Respondent: Present Chief Justice Mohan Peiris
When the respondent was serving as legal adviser of Royal Fernwood Company Ltd. the company was to pay Rs73.5 million to the State as tax pertaining to exports by the company. The company had appealed for concessions from the Inland Revenue Department citing difficulty in paying. The Inland Revenue Department directed the issue to the Attorney General for his advice. Mohan Peiris was the Attorney General then and he advised to reduce the tax to Rs 2.8 million for his former client Royal Fernwood.

2013,
Plaintiff: People's Liberation Front (JVP)
Against Chairman of National Savings Bank (NSB) Pradeep Kariyawasam, the Director Board of the NSB and Governor of Central Bank of Sri Lanka Ajith Nivard Cabraal, pertaining to attempted acquisition of stakes of loss making The Finance Company.
January 01, 2014
Plaintiff: People's Liberation Front (JVP)
Against the Supreme Court Judge (present chairman of Bribery or Corruption Commission) soliciting a motor vehicle as a bribe from Ranjan Kanakasabe in return for the assistance provided to release the vehicles imported by the latter from Customs.
 

December 2011
Plaintiff: Sujeewa Senasinghe, MP Colombo District, (UNP)
Against Governor of Central Bank of Sri Lanka Ajith Nivard Cabraal and those who advised him to purchase US$ 22 million of Greek bonds at a time that the Greek government was in severe crisis.
 

2014
A businessman from Maharagama called Disanayaka was arrested by officials of the Bribery and Corruption Commission as he was soliciting a bribe from a person who complained to the Commission. Instead of remanding the suspect, he was admitted to Colombo National Hospital. He was treated there for several months and acquitted on the basis that the evidence was not adequate. The suspect was revealed to be a close relative of a VVIP politician.
The Bribery or Corruption Commission has investigated only the complaint against former Chairman of National Savings Bank Pradeep Kariyawasm with regard to acquiring stakes of The Finance Company with the funds of the NSB.
Meanwhile, Transparency International of Sri Lanka has submitted eight complaints to the Bribery or Corruption Commission and they have been informed by the Commission that two of the complaints are being probed. Nothing has been informed by the Commission regarding the other six complaints.
 
 
The Bribery or Corruption Commission received a complaint several years ago against Minister of Ports and Ports Development, Rohitha Abegunawardhana, over the way he earned Rs 400 million. When media inquired about this from Commission Chairman Jagath Balapatabendi he replied, "Yes, I remember that complaint but I don't know what happened to it. It was a complaint lodged before I took the office."
 

June 2012
Plaintiff: Inter Company Employees' Union
Against Governor of the Central Bank of Sri Lanka, Ajith Nivard Cabraal, and the Board of Administration of the Employment Provident Fund (EPF) (pertaining to respondents acquiring stakes of 17 loss making companies owned by businessman Ajith Devasurendra at artificially bloated prices.)
 

2013
Plaintiff: Anti-Corruption Voice
Respondent: Present Chief Justice Mohan Peiris
When the respondent was serving as legal adviser of Royal Fernwood Company Ltd. the company was to pay Rs73.5 million to the State as tax pertaining to exports by the company. The company had appealed for concessions from the Inland Revenue Department citing difficulty in paying. The Inland Revenue Department directed the issue to the Attorney General for his advice. Mohan Peiris was the Attorney General then and he advised to reduce the tax to Rs 2.8 million for his former client Royal Fernwood.
 

2013,
Plaintiff: People's Liberation Front (JVP)
Against Chairman of National Savings Bank (NSB) Pradeep Kariyawasam, the Director Board of the NSB and Governor of Central Bank of Sri Lanka Ajith Nivard Cabraal, pertaining to attempted acquisition of stakes of loss making The Finance Company.
January 01, 2014
Plaintiff: People's Liberation Front (JVP)
Against the Supreme Court Judge (present chairman of Bribery or Corruption Commission) soliciting a motor vehicle as a bribe from Ranjan Kanakasabe in return for the assistance provided to release the vehicles imported by the latter from Customs.
December 2011
Plaintiff: Sujeewa Senasinghe, MP Colombo District, (UNP)
Against Governor of Central Bank of Sri Lanka Ajith Nivard Cabraal and those who advised him to purchase US$ 22 million of Greek bonds at a time that the Greek government was in severe crisis.
 

2014
A businessman from Maharagama called Disanayaka was arrested by officials of the Bribery and Corruption Commission as he was soliciting a bribe from a person who complained to the Commission. Instead of remanding the suspect, he was admitted to Colombo National Hospital. He was treated there for several months and acquitted on the basis that the evidence was not adequate. The suspect was revealed to be a close relative of a VVIP politician.
The Bribery or Corruption Commission has investigated only the complaint against former Chairman of National Savings Bank Pradeep Kariyawasm with regard to acquiring stakes of The Finance Company with the funds of the NSB.
Meanwhile, Transparency International of Sri Lanka has submitted eight complaints to the Bribery or Corruption Commission and they have been informed by the Commission that two of the complaints are being probed. Nothing has been informed by the Commission regarding the other six complaints.

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