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Tuesday, 28 July 2015 00:05 - - {{hitsCtrl.values.hits}}
By H.K. Seneviratne
On 8 January 2015, the people of Sri Lanka have mandated a regime change expecting far-reaching changes in the leadership, form of governance to gain and preserve the rights and privileges that guarantee the dignity and wellbeing of the people.
It was also the expectation of the people to have a front to investigate corruption, frauds and other forms illicit enrichments of the persons, public agencies, public enterprises and the politicians in particular who performed a public function of the former administration.
There was a mass disappointment over the slow, snail- spaced and lackadaisical progress in the detection, investigation and prosecution of alleged acts of corruption and economic crimes of the former administration.
As regards the above, people are mindful of the complex and sophisticated nature of fact finding process leading to prosecution for acts of corruption and also to the fact that , in contrast to the public outcry demanding stern action against wrongdoers of corruption and economic crimes of the previous regime that ultimately resulted the grilling and investigation of acts of corruption and economic crimes, the development, first of their kind, of organised mass protests and demonstrations to oppose the right and the fairness of the criminal investigations on the ground of violation individual human rights and liberties of the perpetrators so as to ensure the impunity of the corrupt elite.
Criminal justice system and Constitution
Usually the criminal justice system provides a balance between the investigation of truth and the fairness in the process of prosecution. Towards that end the criminal law system imposes the primary burden on the state to prove the guilt of a crime by establishing each and every ingredient that constitutes the crime.
The presumption of innocence until proven guilty before a competent independent and impartial court is basic tools that ensure the rights of an accused. Additionally the law imposes the requirement to have the standard of proof beyond reasonable doubt for crimes under pain of punishment. In the criminal justice system the state takes over the primary responsibility of detection, apprehension, prosecution and conviction of offenders.
The principle of the presumption of innocence, right to fair trial and right to be heard, right not to be deprived of personal liberty except according to procedure established by law, right to be informed of the reason for arrest, right to be produced before a judge within a reasonable time after arrest have been a part of the criminal law of this country for many years. These principles are now guaranteed under Article 13 of the Constitution.
It should be noted that Article 13 (5) of the Constitution that guarantees the principle of presumption of innocence provides for an exception to shift the burden to the accused in proving particular facts in selected crimes. Based on the exception to the rule various subsidiary laws, procedures and practices have been made to deviate from the said principle .The criminal law provisions therefore assume as proved the existence of some of the elements of certain crimes without requiring the public prosecutor to submit evidence.
Article 15 (1) of the Constitution permits to make subsidiary laws to restrict the operation of principle of presumption of in the interests of national security.
Similarly Article 15(7) makes provisions for subsidiary legislation be made to restrict freedom from arbitrary arrest and detention and punishment and prohibition against retroactive penal legislation in the interests of national security, public order and protection of public health or morality or for due recognition of and respect for the rights and freedom of others or meeting the just requirements of the general welfare of a democratic society.
From the crime control perspective the Constitution makes provisions to prescribe laws to restrict the freedom from arbitrary arrest, detention and punishment and prohibition of retroactive penal legislation in the national interest, public order and protection of public health or morality or for due recognition of and respect for the rights and freedom of others or meeting the just requirements of the general welfare of a democratic society.
Thus a suspect who has been arrested in accordance with the provisions of the laws of criminal procedure under the exceptional circumstances prescribed by law, the court may deny bail and keep the arrested person in custody or remand for a time strictly required to carry out the necessary investigation, or demand adequate guarantees for his conditional release.
The purposes under which the legislature could legally prescribe restrictions on the liberties of persons when a person is arrested on suspicion of a specified offence is contemplated in the Constitution not only for the reasons of national security but also to meet the rights and freedom of others in the society ,good public order and morality, etc.
However, the exception to the rules is not a dispensation of the right to basic principles of natural justice, fundamental tenet of right to a fair hearing, accused to know the case which is made against him, pre-trial detention mandatorily on reasoned decisions, etc., but, in consideration of seriousness of variety of social, economic and political threats , it is needed to safeguard the stability and security of societies , sustainable development, the values of democracy, its institutions, ethical values, rule of law of societies.
In the case of corruption charges such as illicit enrichment of elite who held and performed public functions, the assertion by them of violation of their personal liberties, rights and privileges to counter or obstruct investigation of facts and prosecution that it follows cannot be looked in isolation and without heed to the over-riding fundamental obligations of the state to provide just requirements and welfare of the society and the effect of corruption have on the economies of countries.
There is a strong correlation between corruption, poverty, and inequality in societies indicating a strong link between corruption by politicians and public officials and human rights of others in the society.
The abuse of authority for illicit personal gain by politicians and public officials always infringes legitimate exercise of human rights of communities in the society. The abuse of assets of the state for undue personal enrichment depletes the state resources, which would otherwise be utilised uniformly for the welfare of the community. The right to live in a corruption-free society is also a human right that a democratic society should strive to achieve.
It is axiomatic that countries where corruption pervades governments and legal systems, law enforcement, legal reform and the fair administration of justice is impeded by corrupt politicians, lawyers, judges, prosecutors, police officers, investigators and auditors. In highly corrupt country the human right violations of the people occur in persistent manner and go unpunished. The corrupt elite have a vested interest in perpetrating human rights violations and denying basic rights, access to information, freedom of expression and opinion making to ensure their impunity. The perpetration of corruption is also a human right violation.
In the enforcement of fundamental rights and freedoms in the constitution cannot be done in isolation and without due regards to the spirit of constitution that pledges under Directive Principles of State Policy to establish a democratic society for the full realisation of the fundamental rights and freedoms of all persons, the equitable distribution among all citizens of the material resources of the community for the common good, ensure equality to citizens, and exploitation of man by man. Against the backdrop of the true spirit of the constitution the general public is perplexed over certain judicial interventions in the process of detection and investigation for the prosecution of alleged corrupt act.
International perspective
Yet another aspect is the development in the global sphere. The international community has identified that corruption is no longer a local issue and it is a global phenomenon entailing international cooperation and assistance to prevent and control it.
The United Nations (UN) in October 2003 has made a major breakthrough in adopting the UN Convention against Corruption (UNCAC) creating a comprehensive set of standards, measures and rules calling upon all member states to adopt to strengthen their legal and regulatory regimes to fight against corruption in both public and private sectors. Nearly 150 countries including Sri Lanka so far have become signatories to UNCAC and Sri Lanka has ratified it in March 2004.
Kofi Annan, former Secretary-General of the UN, on the adoption of UNCAC has illustrated the evil effect of corruption on the society as follows:
“Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organised crime, terrorism and other threats to human security to flourish.”
Kofi Annan, in contrast, emphasised the importance of core values such as honesty, respect for the rule of law, accountability and transparency in promoting development and making the world a better place for all.
The UNCAC requires the member countries to criminalise the most prevalent forms of corruption to make them criminal offences if these are not already crimes under the domestic law within their constitutional framework. The UNCAC covers bribery, embezzlement of public funds including money laundering, concealment, conversion or transfer of criminal proceeds and obstruction of justice. The State Parties are obliged to assist each other in cross border criminal matters to fight corruption, including prevention, investigation, and the prosecution of offenders and to render legal assistance in gathering and transferring evidence for use in court proceedings.
One of the main innovations of the Convention is the right to recovery of stolen public assets to the original state and the return of proceeds of an offence covered by the Convention to the requesting state on establishment of ownership to it. This is of particularly importance to many developing countries where high-level corruption has plundered the national wealth, and where resources are badly needed for development and reconstruction of the societies.
This multidisciplinary approach of the UN Convention is considered to provide the most effective machinery, enhancement and strengthening of the capacity of member states in corresponding institution-building to combat corruption.
State obligations
When a State ratifies or accedes to a Covenant, it undertakes two domestic obligations. The first is to respect and to ensure to all individuals within its territory are subject to its jurisdiction the rights recognised in the Covenant.
The second is to take the necessary steps, in accordance with its constitutional processes to adopt the legislative measures as may be necessary to give effect to the provisions of the Covenant.
The status of international law within a municipal legal system is generally determined by municipal law. The countries that follow the monist theory the international law and municipal law on the same subject operate concurrently and, in the event of a conflict, the municipal law prevails.
The countries that follow the dualist theory like Sri Lanka the international law and municipal law are regarded as two separate systems of law and they are mutually exclusive, and the former has no effect unless and until the international law is incorporated through domestic legislation.
Article 27(15) of Sri Lanka Constitution declares that state shall promote international peace, security and co-operation, and the establishment of a just and equitable international economic and social order, and shall endeavour to foster respect for international law and treaty obligations in dealings among nation.
In ratifying the international treaty obligations Sri Lanka in correct spirit of its Constitution to incorporate needy provisions in the treaty which was ratified in March 2004 through domestic legislation to make the local legislation most effective machinery, enhancement and strengthen the capacity building of corresponding institution designed to combat corruption in full scale and to confiscate and recover the plundered money lying in foreign countries.
In Sri Lanka the bribery offences are in the Penal Code and the Bribery Act. As a glimpse one would see that the availability of international assistance in bribery offences under the Extradition Act and the Mutual Assistance in Criminal Matters Act is limited to specified Commonwealth countries and countries with which Sri Lanka have had contracts in this connection.
There is a need to extend the ability to seek extradition and mutual assistance to other countries. It is not a crime in Sri Lanka to bribe officials of foreign governments or public international organisations in the conduct of international business. The need to extend Sri Lankans’ national jurisdiction to prosecute natural and legal persons for corrupt acts committed outside Sri Lanka A broader sleuth in conformity with UNCAC is imperative to curb corrupt acts in the modern day transaction,
Task ahead
Thus under the local and international scenario it is imperative, as the former Director General asserted the importance to return to core values such as honesty, respect for the rule of law, accountability and transparency in promoting development and making the world a better place for all, Sri Lanka on our part in consistence with treaty obligations to ensure a strong and effect machinery to curb all forms of corruption at all levels to make Sri Lanka a better place for living.
Against the above scenario the manipulations by the elite of previous regime to affront investigation of corruption for their impunity to continue are indecent.
