Mar 16

The 100-day Programme (“the Programme”) of the government had obviously been worked out in such secrecy that there would have been no possibility of subjecting any part of it to public discussion ahead of the announcement of its details.  Within a few days of the Programme being launched, the Citizens’ Movement for Good Governance (CIMOGG) stated: “We doubt whether the 100-day Programme is totally achievable within that limited time frame but it is only by having an ambitious target that a substantial improvement over the status quo can be effected”.  On account of its special relevance to the Programme, we should also like to refer to our article titled BILLS AND URGENT BILLS published in October 2007 (www.cimogg-srilanka.org), wherein we have emphasized that at least three months should be given to all stakeholders to contribute their views on every draft bill presented to Parliament other than those that deal with national emergencies.  Legislation passed during the 100-day period, on account of the prior commitment made, would not have the benefit of a 3-month review period to receive adequate inputs from the public.  Therefore, some other arrangement should be made.

Upgrading the 17th Amendment (“17A”) – In December 2005, we identified the need to refine 17A but those who are now busy rejuvenating it in accordance with their own ideas have not called for the views of the public on this matter.  We deal below with just one fundamental issue regarding 17A.

A key feature of 17A that needs reconsideration is that the terms of reference of the Public Service Commission (PSC) cover only the appointments, promotions, transfers and disciplinary proceedings relating to the relatively lower levels of those in government service but the appointment of senior officers, chairmen of authorities, boards and corporations, heads of department, ambassadors etc are largely reserved for the President to recommend at his will and pleasure to the Cabinet, and obtain its approval, which, as far as we know, is never withheld.  It is debatable whether we should continue to fritter away the skills, experience and objectivity of carefully chosen persons of eminence and integrity in the PSC to engage themselves solely with the concerns of lower level employees of the State apparatus and not utilize such skills, experience and objectivity to help in selecting the right persons for the much more critically important positions that are located higher up the ladder, the holders of which positions could in turn be expected to attend more efficiently to the needs of those with less onerous responsibilities.

There are bound to be many other features of 17A that the public would like to modify but the Programme has no time for these.

Right to Information (RTI) – More than one version of an RTI Bill has been talked about over the years but some governments have not been keen to get any one of these versions passed in Parliament although Cabinet approval was obtained in one instance some years ago.  Certain countries have fairly good RTI legislation but we have not been able to evaluate whether the draft that is now being pushed forward will be as effective as the better ones elsewhere.  The reality is that most governments do not wish citizens to be given information that would encourage them to ask difficult questions which the authorities would prefer to avoid answering, most often to hide some impropriety related to governance, particularly the violation of fundamental rights and the robbing of public assets.

The Programme has not provided sufficient time for public comment.

Code of Conduct (Code) – Sri Lanka boasts of being home to four of the major world religions, all of which have preached for centuries that one should not kill or steal or lie or treat others unkindly, and so on and so forth.  Moreover, there is already a plethora of laws to prevent every kind of anti-social behaviour.  Consequently, we may reasonably forecast that individuals whose moral values are sound ab initio will automatically conform to the requirements of the proposed Code if adopted.  On the other hand, we need to ask ourselves whether there is even the remotest chance that the so-far-poor compliance with religious and good governance standards will be bettered even nominally by the adoption of a Code to promote good conduct.  There is every reason to doubt that the proposed Code will achieve anything tangible that our religions and laws have not accomplished to date.

Special Commissions to Investigate Allegations of Massive Corruption – Presently, the Bribery Commission has to receive a well-supported complaint (with documentary evidence) for it look into an allegation of bribery and corruption.  Even with this limitation, thanks to an energetic new Director-General, a remarkable acceleration of the investigations can be seen.  In order to maintain the momentum that is being generated, we trust that the Commission will be given whatever staff, finance and other resources it requires without the usual foot-dragging, intentional or otherwise.

The plan to have Special Commissions (in addition to the Bribery Commission) to deal with the more scandalous cases of robbing the People blind is seen as a means that will ensure that the connected investigations and legal processes do not get stuck in our legal system that has historically been achieving only a single conviction out of every 25 prosecutions initiated.  Patently, such Special Commissions could, if properly staffed and well equipped, be able to investigate cases of massive corruption, where it would be necessary to probe accumulations of unlawful commissions in overseas havens.  On the other hand, it would seem reasonable to suppose that these Special Commissions, too, would take action only after the Police and Attorney General have gathered sufficient evidence to initiate a sound prosecution, which would be akin to trying to get runaway horses back to the stable after such a long interval that the success rate is bound to be poor.

In view of the substantial lag that is inevitable between the commitment of an offence and its submission to a Special Commission, we see the need for more proactive, comprehensive, continuous, reliable and faster monitoring to identify the acquisition of those assets that have been funded by unlawful monetary commissions and concealed earnings, whether received locally or accumulated overseas and brought in under the disguise of foreign investments (that is, by foreign nominees acting as investors).  The detection of such crimes, without having to rely on prior complaints by duty-conscious citizens, is more often than not likely to be facilitated to a significant extent by the fact that successful cheats not only invest and squander their moneys overseas but also feel the overpowering desire to spend lavishly here on self-gratification and to show off their grand houses, super-luxury vehicles, designer jewellery, antiques, art works and other valuable possessions, and more recently to set up trusts to perpetuate their names and “philanthropic” reputations for the edification of future generations.

There are said to be around 400,000 citizens with tax files at the Department of Inland Revenue (DIR).  It is not likely that more than, say, 5,000 of these persons would be in positions where they would have the opportunity to subvert longstanding administrative and financial procedures and the laws of the land to defraud the people on a large scale.  Whereas the duty to monitor the compatibility between the declared income of an individual and his accumulated assets has been assigned to the Department of Inland Revenue (DIR), there is a justifiable perception that it is not difficult for tax evaders to influence the tax officers concerned to look the other way.  In other words, it is vitally necessary to have an effective parallel check on whether officials of the DIR are doing their job properly or not.

Towards this end, it is proposed that a powerful, small unit be formed under the leadership of three judges with experience in dealing with financial frauds.  It may be named the “Permanent Assets Monitoring Commission” (PAMC).  This unit should be staffed with a few accountants, lawyers and fraud investigators who have not worked for the DIR before.  It should be located in close proximity to the Head Office of the DIR.  The secrecy provisions pertaining to the DIR should be relaxed to the extent that, when the annual tax returns of anyone in the aforesaid group of 5,000 persons is received by the DIR, such returns should be photocopied immediately and forwarded, together with all relevant schedules, to the PAMC, which can separately ascertain whether the assets and incomes concerned are consistent.  A valuable control would be the availability of the PAMC copies of the annual tax returns to ensure that the originals will not be tampered with by the combined efforts of the tax evader and the relevant assessor to reduce the tax burden.  In addition, the PAMC must be empowered to have ready access to any tax file that may have a bearing on the information contained in a suspect return.

Conclusion – It is imperative that the legislation that is passed under the Programme should have an in-built requirement for public representations to be received within a period of 12 months thereafter – that is, after allowing extra time for the diversion of public attention to the forthcoming parliamentary elections and returning to some degree of normality.

Dr A.C.Visvalingam
President, CIMOGG



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