A reflection on accountability, march hares and madness

• Sunday, January 21, 2018

An interesting pro-accountability exercise took place in Sri Lanka this week which went largely unnoticed due to political distractions.

These doltish distractions ranged from a ‘withdrawal of a withdrawal of’ a long forgotten excise notification forbidding women to buy liquor to ominous grandstanding by leaders of the coalition government even as details of the Central Bank bond scam came to light with the release of the Commission of Inquiry report.

The heavy ironies of the law

In what is perhaps the most riveting use of its authority since its establishment decades ago, the Commission to Investigate Allegations of Bribery and Corruption (CIABOC) filed charges in the Colombo Chief Magistrate’s Court against former Chief Justice and former Attorney General Mohan Peiris, Court of Appeal Judge A.H.M.D. Nawaz and former LECO Chairman M.M.C. Ferdinando for offences falling under Section 70 of the Bribery Act (as amended).

The merits of the case will not be gone into here. But quite apart from the heavy irony of a former Chief Justice and a sitting Appeal Court judge being charged in the Magistrate’s Court for corruption, the substance of the charge is interesting. These were in connection with an investigation conducted by the Criminal Investigation Department (CID) pertaining to ‘certain financial irregularities’ which had occurred in the Lanka Electricity Co. Pvt Ltd (LECO) during the Rajapaksa Presidency. Reportedly, two committees appointed to look into the misappropriation of funds at LECO amounting to Rs.260 million had recommended the institution of legal action against perpetrators under the Penal Code for misappropriation and under the Bribery Act for corruption charges.

Contrary to the recommendations made by the two committees, former Attorney General at the time Mohan Peiris and Deputy Solicitor General A.H.M.D. Nawaz had recommended not to institute criminal investigations against the perpetrators, thus conferring a wrongful or unlawful benefit and favour or advantage to the perpetrators contrary to law.

A provocative use of the Bribery Act

Section 70 of the Bribery Act was brought in by an amendment in 1994 to collective jubilation but true to form, allowed to lapse largely unutilized in later decades. This may be the first time that this provision has been put to such provocative use. This observation is subject to the evident caution that charges of the utmost seriousness such as these must be buttressed by adequate evidentiary material to call for penal consequences. As a matter of strict law, the allegations against the two state law officers are of a penal nature. The evidentiary material in support thereof must, of necessity, go beyond claims of the improper use of discretion in wielding statutory powers.

Where the use of discretion is concerned of course, the Sri Lankan law has been plagued for decades by the Office of the Attorney General being treated with unwarranted magnanimity by judges. The Supreme Court has affirmed that the Attorney-General’s powers are neither absolute nor unfettered and where exercise of the same amounts to a constitutional violation, that exercise can be reviewed (Victor Ivan v. Sarath Silva, Attorney General, [1998] 1 Sri LR, 340). The power to file (or not file) an indictment was declared in that case to be a discretionary power subject to judicial review. But in this instance and others, judges have traditionally applied a high standard to decide if the discretion of the Attorney General was ‘unreasonably’ wielded.

A certain amount of latitude must be given in such cases. However treating decisions taken by the Attorney General much like the proverbial ‘holy cow’ is detrimental to the Rule of Law and the accountability of the State. In public law as in criminal law, these old notions must be replaced by modern progressive thinking in many jurisdictions that the primary state law officer of the land must be subjected to public scrutiny. Efforts to use the law to compel such accountability must be welcomed provided however that the legal basis for the same is thoroughly and meticulously established.

Sexism and the absence of logic

And now, to digress from the aspiringly sublime to the patently ridiculous, March madness came early this year to Sri Lanka’s Minister of Sports and the Minister of Health as those who witnessed their painful struggles on national television to explain the Government’s policy change on reversing an archaic ban on women buying liquor within the premises of a tavern, may instantly agree. Calling these two ministerial worthies ‘mad as March hares’ may be insulting to the skittish March hare itself. But their explanations, issued amidst silly giggles, shows precisely why the unity alliance is subjected to increasing ridicule due to its confused and contradictory policies.

For instance, one assertion was that this ‘withdrawal of a withdrawal of’ the gender discriminatory excise notification was to protect the ‘purity’ of the country’s village damsels. If this is their goal, the two Ministers might be advised to direct their energies to stop the slavery of Sri Lankan female domestic workers in the Middle East who are starved, abused, battered and sometimes killed by their owners. Or it may be useful to reform policies and practice to better tackle exponentially high incidents of rape and sexual harassment.

There are some who protest that the law in Western countries should not be the standard for the reason that Western ‘ethics’ are different from the ‘culture’ observed in this serendipitous isle. Others say that ‘despite the law’ in those countries forbidding discrimination etc, the practice is different. These gentlemen must be less gently schooled to understand the point that there is no ‘despite the law.’ The law is precisely the point.

The law cannot permit discrimination

As a school child would know, discriminatory regulations, notifications and rules are contrary to the constitutional guarantee to equality. Distinguishing between the law and ‘practice’ in ‘sinful’ Western countries in other contexts (such as race relations) to illustrate a flawed argument that a regulation can be discriminatory in this country per se is asinine. It is equally so to justify discrimination on the basis of ‘social culture.’ Decisions handed down by the Supreme Court to that effect are many.

That being said, the law and political strategy are two vastly different creatures. Was it really necessary to project a shamefully sexist ban into national debate (leading to chuckles around the world moreover) at this time of strained political tempers and pre-election heat? This gazette (mis)adventure by the Minister of Finance might have been more appropriate at a different time altogether. That is if indeed, withdrawing a retrogressive and barely implemented excise notification was so high on the Government’s list of priorities while high corruption goes unscathed and thievish political rogues unendingly grin from ear to ear over a local government election which has local governance as the least of its priorities?

Truly Sri Lanka is the most poignant example of that immortal warning, ‘whom the gods would destroy, they first make mad.’