Kishali Pinto -Jayawardene
When French Prime Minister during World War I, Georges Clemenceau rousingly said that ‘war is too important to be left to the generals,’ Sri Lankans may be justified in muttering to themselves more than a hundred years later that, ‘laws are far too important to be left to the lawyers – or to Ministers of Justice, perchance.’
Putting the President to right
Law reform has had few success stories in this country. Always somewhat of a dance with the devil as it were, that dance has become even more preposterous in recent years. As was editorially (and pungently) observed in this newspaper, the Supreme Court is routinely being called upon to correct legal lacunae which should be the task of the draftsperson to minimise and the responsibility of the Attorney General to vet.
Quite apart from mediocre if not outright bad drafting, political agendas drive law reform efforts. The periodic emergence of an Anti-Terrorism Bill (earlier called the Counter-Terrorism Bill) with ghastly violations of civil liberties at its core, is just one example. There are others. Take the new anti-corruption law that President Ranil Wickremesinghe has announced with ill placed aplomb, ‘will be the best in South Asia.’
Inferentially, we are asked to believe that existing anti-corruption laws are ‘bad’ and all would be remedied when the ‘good’ laws come in. That is, of course, anything but the truth.
Sri Lanka’s anti-bribery and corruption reforms in 1994, pulled together valiantly at the time, were highly creditable. However, its implementation was miserably politicised. For that, the political establishment must bear the responsibility, inclusive of putting their ‘favourites’ into the Bribery and Corruption Commission and blocking each and every effort to nab the ‘big fish’ as it were.
Director General given the right to withdraw corruption indictments
All this had a domino impact on why the country crashed into bankruptcy, the inevitable result of decades of stupendous political and public sector corruption. Shamelessly, that corruption continues as robber barons safe from the reach of the law, milk charity supplies dry, stealing from the poor and mocking the starving.
On the cusp of marking an unremarkable thirty years of the utter failure of that 1994 reform effort next year, a Bill with one hundred and fifty five pages of content has been thrust on the Sri Lankan public.
The full impact of its clauses must await detailed scrutiny elsewhere but there is one singular feature that evokes much curiosity. This concerns Clause 67 (1) of the Bill which gives the right to the Director General of the new Anti-Corruption Commission, with the sanction of the Commission and the permission of the High Court anytime before judgement is given by the Court, to withdraw indictment against the accused. As ‘bad’ as conferral of that power is for the reasons that we will discuss, the exercise of the power is made all the more ridiculous by being subjected to certain ‘conditions.’
Clause 67 (2) enjoins the Director General to ‘have regard’, when withdrawing indictment, to several factors.
First, ‘State policy on prevention of bribery and corruption.’
Second, ‘the national interest and public interest.’
Third, ‘views of the victims of the offence.’
Fourth and perhaps most ludicrously of all, ‘representations that may be made by the accused person or on his behalf by his Attorney-at-Law.’
Where is the national/public/state interest?
We are presented therefore with a nonsensical scenario in the best sense of that term.
Fundamentally, should any of these factors have any bearing whatsoever on the withdrawal of an indictment for bribery and corruption?
To what end is ‘state policy’ or for that matter, ‘national interest or public interest’ relevant in that regard?
These are indictments which, we would assume, are presented with a great deal of caution and effort by this new Commission expending public funds thereto.
In what manner can their ‘withdrawal’ be in consequence of state policy or public/national interest?
Or are we reading ‘political interest’ as having the same meaning as public/national interest?
In fact, these terms, ie; ‘State policy/national or public interest’ and ‘withdrawal of indictments’ should not be read in the same breath in a proposed anti-corruption law in the first instance. The other grounds detailed in that clause are scarcely less absurd.
In what legal universe can an indictment be withdrawn based on ‘representations that may be made by the accused person or on his behalf by his Attorney-at-Law.’ These are reasons perhaps that speak to judicial clemency as the case may be at that appropriate stage but not as a basis to have ‘regard to’ when withdrawing an indictment. Clause 67 (3) meanwhile tips the balance of the Bill from the absurd to the plainly insane, if I might say so.
Giving violators a jail free card
This Clause gives the Director General the authority to impose any one or more of the following four conditions when withdrawing an indictment as permitted in Clause 67 (1). These conditions include the public expression of remorse and apology before the High Court, using a text issued by the Commission, to provide reparation to victims of the offence, as specified by the Commission, to publicly undertake that he refrains from committing an offence under the Act or to permanently refrain from holding public office.
If these conditions are imposed and the accused fails to act accordingly, the Director General is empowered to issue a fresh indictment and proceed to prosecution. Certainly, one is forced to pinch oneself to ascertain if the words are being read right.
As the Bill currently stands, a bribery predator or gross corruptor can be indicted and then, his or her indictment withdrawn if a ‘public expression of remorse and apology before the High Court’ is issued?
Have the drafters of this Bill confused its intent with the Truth and Reconciliation Commission, one wonders?
In what manner of truth can someone who has defrauded the coffers and committed a criminal offence, escape by apologizing or expressing remorse?
Or in what will be the icing on this farcical cake, to ’publicly undertake‘ that ‘he will refrain from committing an offence under the Act’?
The very idea is hip-splittingly laughable. Who will be afraid of indictments at all under this much hyped Bill, pray?
Inciting public anger by bad laws
The very meaning and intent of Section 67 is obnoxious. Its absence of gender neutral language is only the least of its sins. In sum, giving the Director General, the power to withdraw indictments based on grounds that are not legally defensible, undermines the grandly announced purpose of the Bill.
The power to withdraw indictments is a rare power, conferred upon the Attorney General under our law with extraordinary circumspection, to be exercised only in exceptional instances.
The existing law (Criminal Procedure Code, Section 194) gives the discretionary power of ‘nolle prosequi’ (stopping a criminal trial) to the Attorney General at any stage of the proceedings in the High Court. That historical power has developed as part of the Attorney General being enjoined to act as a trustee of the public interest, not the Government’s lackey as is often thought by politicians.
We have seen ugly flames of public anger when indictments were withdrawn by the Attorney General against politically privileged persons (PPP). This compelled the state law office (unprecedentedly) to justify its own actions.
That said, this power given to the state law office should not be carelessly scattered around. Its bestowal on a Director General of a proposed anti-corruption Commission reeks of the danger of abuse.
Space is insufficient to embark on a comprehensive examination of the remaining clauses but Clause 67 is danger signal enough. Far from being the ‘best law in South Asia’ as President Wickremesinghe’s nonchalant claim went, this Bill is a ‘riddle wrapped in a mystery inside an enigma’ (circa Winston Churchill describing Russia in 1939 as Nazi Germany advanced on Europe).
We should set no store on that riddle being easily resolved.