Mar 29

The DECLARATION OF ASSETS AND LIABILITIES LAW was passed in August 1975.  It was amended subsequently by the DECLARATION OF ASSETS AND LIABILITIES (AMENDMENT) ACT No. 74 OF 1988.  The scope of this Law is such that it applies to (a) Members of Parliament; (b) judges and public officers appointed by the President, public officers appointed by the Cabinet of Ministers, judicial officers and scheduled public officers appointed by the Judicial Services Commission and staff officers in Ministries and Government Departments; (c) Chairmen, Directors, members of the Boards and staff officers of public corporations; (d) elected members and staff officers of local authorities; (da) office-bearers of recognised political parties for the purposes of elections under the Presidential Elections Act No.15 of 1981, Parliamentary Elections Act No.1 of 1981 or the Provincial Councils Elections Act No.2 of 1988 or the Development Councils (Elections) Act No.20 of 1981 or the Trade Unions Ordinance; (db) the executive of trade unions registered under the Trades Unions Ordinance; (dc) candidates nominated for election at elections to be held under the Presidential Elections Act No.15 of 1981, the Parliamentary Elections Act No.1 of 1981, the Provincial Councils Elections Act No.2 of 1988, the Development Councils (Elections) Act No 20 of 1981 or the Local Authorities Elections Ordinance; (dd) proprietors, editors and members of the editorial staff of newspapers in respect of which declarations have been made under section 2 of the Newspapers Ordinance; (de) Chairmen, Directors and staff officers of companies registered under the Companies Act No.17 of 1982, in which the majority of shares are held by the State or by a public corporation; and (e) such categories of other officers as may be specified by regulations.

Despite its impressive scope, this Law has proved to be of virtually no use at all in helping identify those who are both powerful and corrupt.  So far, it has only led to some Asprats and, perhaps, a few Asardines being caught by the Permanent Commission to Investigate Allegations of Bribery or Corruption (PCIABC) – but the Asharks continue with their feeding frenzy.

There are so many aspects of this Law which are not conducive to effective implementation that CIMOGG considers that the approach to the formulation of this Law should be changed significantly. The most critical aspects of the changes needed are analysed briefly below.

In this connection, CIMOGG recalls that it wrote to the Secretary-General of Parliament (SGP), the Speaker and the Commissioner of Elections (CE) over a period of time to ascertain how many Members of Parliament had failed to declare their assets and liabilities, either at the time of nomination or later.  There was no danger of a breach of secrecy because we did not ask to look at the declarations themselves but only wished to have the names of those who had failed to conform to this statutory requirement.  The SGP avoided giving us a useful answer by asking us to write to the Speaker, who, however, has not favoured us with a reply to date. The Commissioner of Elections, on the contrary, promptly gave us the names of the MPs who had furnished their declarations at the time they submitted their nomination papers.  There were only seven in his list!

Now, Section 3 states that A… a person to whom this Law applies referred to in paragraph (dc) of sub-section (1) of Section 2 shall be deemed to have complied with the provisions of this sub-section if he makes a declaration of his assets and liabilities as at the date of his nomination as a candidate for election under any of the Acts referred to in that paragraph on the date of such nomination or before he functions, or sits or votes, as President, a Member of Parliament ….  Notwithstanding the clear intention of the words which have been italicised in this excerpt, CIMOGG believes that there is a high probability that there are at least a few MPs who would have functioned, sat or voted before they submitted their declarations, if they did indeed eventually comply with this Law.  Thus all their functioning, sitting and voting until such time as they finally submitted their declarations would have been illegal acts.  These MPs may still be in breach of the Law but, in the light of the current Speaker=s silence, we may have to wait awhile to learn the truth.

The two weakest features of this Law are that (a) there is no requirement to carry out routine checks on the veracity of the submissions made by those to whom this Law applies, and (b) the requirement that declarations have to be updated typically only once in five years.  As far as we are aware, there has not been a single instance since 1975 where routine checking, if done, has revealed an act of bribery or corruption.  As things stand at present, the Aappropriate authority or the PCIABC will do no more than just wait passively until an intrepid citizen forwards what it considers to be a Agenuine communication to it, to Adraw the attention of such authority to any recent acquisitions of wealth or property or to any recent financial or business dealings or to any recent expenditures by any person to whom this Law applies, which to the knowledge of the person making such complaint is not commensurate with the known sources of wealth and income of such person to whom this Law applies.  It is suspected, from the way in which these provisions are formulated, that this Law was passed under public pressure so as impress voters that our lawmakers are ever willing to subject themselves, too, to scrutiny, whilst, at the same time, making sure that its implementation in respect of catching the Asharks would be stymied from the outset.

As an example, one may consider Section 4 of the Law, which gives a long and unwieldy list of the persons to whom the respective classes of persons to this Law applies should submit their declarations.  This provision ensures that no suitably qualified and resourced institution will have routine access to the declarations for the purpose of assessing their truthfulness or for monitoring the changes of assets and liabilities, and incommensurate expenditures, sufficiently rapidly to close the stable door before all the horses bolt.

Another striking negative feature of this Law is that it threatens the very people who might well uncover cases of bribery or corruption among the powerful.  In particular, the inclusion of the class of persons given under (db) in the first paragraph above would tend to discourage what is known as Awhistle-blowing, for which trade unions are often responsible.  Those in class (dd) are media personnel who could be expected to publish unwelcome exposés of facts which could result in investigations being initiated under this Law against powerful persons.  These two classes of persons should be removed from the list of those to whom this Law is applicable.

Considering the critical weaknesses highlighted above, CIMOGG is persuaded that, instead of different classes of persons making declarations to a vast number of different individuals, a person to whom the Law applies shall, within 3 months of becoming liable to do so, submit to a newly set up branch of the Department of Inland Revenue (DIR) a declaration of his income, expenditure and wealth for the current year on the standard Income Tax Return form, together with a statement covering the cost of all foreign travel, the countries visited and the persons, if any, who have paid for or subsidised the cost of such foreign travel.  These returns should be updated every year.

The changes proposed will not result in any loss of confidentiality, as compared to the present requirements, as the DIR is even ordinarily sworn to secrecy.  However, instead of relying on Section 5(2), where the PCIABC has the right to call for and refer to any declaration of assets and liabilities, it is the DIR who would be obliged to inform the PCIABC of any discrepancies or unusual features in the returns submitted.  The PCIABC would then be able to call upon the person concerned to forward his explanations.

In order to help prevent the PCIABC being forced to spend too much time investigating the minor transgressions of Asprats, the amended Law could include a provision for the DIR to refer a case to the PCIABC only if the discrepancies exceed, say, Rs.1,000,000 over any one year period.

Adoption of the recommendations made here would greatly simplify the Law and result in proactive monitoring of the assets and liabilities of the more powerful persons to whom this Law applies.

Needless to say, the Law, amended as proposed above, would be ineffective unless corruption in the DIR itself is suppressed.  As there are well-established systems in more advanced countries to control corruption, one may obtain the necessary assistance from them to introduce and maintain the appropriate systems to keep the DIR functioning in a reasonably honest and efficient manner.

Mar 17

It has been brought to the notice of CIMOGG that several companies in the small and medium size sector have been put into great difficulties, some even to the extent of having to close down, as a consequence of their being paid by cheques drawn knowingly by fraudsters on accounts with inadequate funds or after the accounts have been closed down by the banks.  The affected companies, unlike large firms, do not have the necessary resources to weather the shortfall in their cash flow or to go through the lengthy and costly process of litigation necessary to try to retrieve the moneys for the goods and services provided by them in good faith to such cheats.

Generally, when a complaint regarding such invalid cheques is made to the Police, they take action to help the victims of these frauds by filing the relevant charges in terms of the provisions of the Penal Code, which, unfortunately, often results in the culprits being released on bail.  Commonly thereafter, the malefactors either do not appear in Court or disappear altogether.  An adverse side-effect is that hard working and conscientious Police officers tend to get discouraged when they see their law-enforcing efforts go to waste.

Parliament, realising that many industrious entrepreneurs were being destroyed by the activities of cheque fraudsters, passed the Debt Recovery (Special Provisions) Act No 2 on 6 March 1990 to overcome the shortcomings in the relevant sections of the Penal Code.  Unfortunately, our sources reveal that most Police Stations, the Fraud Bureau and the CID do not make use of this new law, which creates an offence distinct from the offence of cheating as defined in the Penal Code.  The new law provides for the imprisonment of those who issue cheques without the necessary funds in their bank accounts.

It is noteworthy that, after a similar law was passed in India, there has been a drastic decline in the number of cases involving Abouncing cheques.

CIMOGG is inclined to the belief that our Police, being historically more familiar with the Penal Code, have not actively familiarised themselves with the 1990 law and do not make use of its provisions in this type of cases.  We, therefore, wrote to the Inspector-General of Police and the Attorney-General on 30 January 2006 on the subject of CHEQUE FRAUDS requesting them to take appropriate steps in this connection.  The IGP was most earnestly requested to issue instructions to all Police officers involved in dealing with this type of offence regarding the need to prefer charges in respect of cheque frauds by reference to the aforementioned Debt Recovery (Special Provisions) Act No 2 and the A-G was urged to use his good offices to see that this was done.  The A-G has indicated that the matter is receiving consideration whereas an acknowledgment by the IGP is still awaited.  With a view to allaying the fears in the minds of those who have addressed us regarding this matter that nothing will be done, we have decided to appeal to these officials through the columns of your esteemed journal in the belief that they may thus be galvanised more effectively into action.

Mar 09

It is with a sense of relief and satisfaction that we have learnt from recent newspaper reports that President Rajapakse observes the Acourtesy of kings by respecting the value of other people’s time.  He has reinstated the virtue of punctuality.  We trust that his excellent example will be followed by those at all levels of the state machinery.  Not limiting himself to this laudable start, the President needs to extend his leadership into three other important areas as well.

What all good citizens would like to have is a President who upholds the Constitution and fosters respect for the rule of law.  In this context, CIMOGG and many others have urged the President, the Prime Minister, the Speaker and the Leader of the Opposition not to persist in their violation of the provisions of the 17th Amendment, which was passed in 2001 by a near-unanimous Parliament.  The two excuses offered over the past four months for the protracted desecration of the Constitution are (a) that the 17th Amendment requires to be improved, and (b) that, although six non-office-bearing members have been identified for appointment, there is disagreement on which party in Parliament is to have the prerogative of nominating the seventh.  As regards the first excuse, not only CIMOGG but the OPA and some others have insisted, and continue to insist, that the 17th Amendment should be implemented as it stands, without any further delay, so that the present egregious violation of the Constitution by the President, the Prime Minister, the Speaker and the Leader of the Opposition is brought to an end.  The numerous conflicting views on the why and how of improving the 17th Amendment should thereafter be opened out for national debate, all suggestions put forward carefully examined, and a well-balanced proposal adopted.  Meanwhile, if one looks at the wording of the 17th Amendment, there is nothing there to state that the Constitutional Council cannot function in the absence of one member, whatever the reason for such absence.  Indeed, the three office-bearing members and the six non-office-bearing members would represent 90 % of the full Constitutional Council.  Common sense and natural law indicate that three office-bearing and three non-office-bearing members would constitute a sufficient quorum.  If one wishes to be more conservative, the quorum could be raised to three office-bearing and four non-office-bearing members, representing over two-thirds of the total membership.  Thus, there is no reason why the President should wait for the tenth member to be nominated.  He should appoint forthwith the six already nominated non-office-bearing members, and give the JHU, the JVP and the TNA all the time in the world to decide on a mutually acceptable nominee.  By so acting, President Rajapakse will be able to help substantiate his claim that he puts the country before other interests.  We would go even further and ask him to persuade these parliamentary groups, all of whom claim not to be motivated by racist considerations, to appoint one mutually-acceptable person of eminence and integrity from among the Burgher, Malay, Sindhi, Parsi, Bohra or other small community, who have no serious voice elsewhere in national affairs.

We next turn to the question of the Judicial Services Commission.  The resignation of the two most senior Supreme Court judges on a Amatter of conscience has been a source of anxiety to all right-thinking people both here and even abroad.  CIMOGG and numerous other organisations and individuals have expressed grave concern regarding these resignations.  Equally disturbing have been the abandonment of the principle of seniority, and the highly adverse and offensive comments made about the capabilities and qualifications of the judges who have resigned.  The public is entitled to know what were the acts the two judges were being urged to do against their conscience, who was responsible for so urging them, and how to prevent a recurrence of this kind of highly damaging situation in the supreme echelons of the judiciary.

It is understood that the two judges who resigned have, in the interests of judicial propriety, indicated that they would not wish to expatiate further on this subject unless they are required to do so before a Select Committee of Parliament.  We, therefore, call upon the President to forget about the personalities involved and request him to press the Speaker to take urgent steps to appoint a Select Committee to get at the truth.  Such a proactive step by the President will reinforce the picture of the President as a leader who is determined to prevent the judiciary from losing its credibility.

In this connection, CIMOGG has more than once exhorted the BASL, directly and through the printed media, to press government to bring in legislation to make the judiciary adopt THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT, which were drawn up a few years ago by an international panel of Chief Justices from thirty or so countries from all around the globe.  President Rajapakse should now, in his role as the ultimate guardian of the rule of law, elected by the country as a whole, take the initiative in this matter and have the Minister of Justice move rapidly to get the relevant legislation passed so that every member of the judiciary has a clear set of guidelines to which his official and private actions must conform.

How well President Rajapakse deals with these three immensely important issues will decide whether he is going to be respected as a great President or treated as just another politician.