According to the statistics published in the brief record of the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) on the complaints and its investigations from 2015 to last year (2023), we find the following: in 2014, the number of complaints received was 2,345; in 2021, it was 2,335; in 2022, it was 2,512; and in 2023, it was 3,004. Thus, around 2,500 to 3,500 complaints are received each year.

The process by which the complaints are referred for investigations – or whether they are referred at all – is not clear. If we look into some well-functioning corruption control commissions, such as the Independent Commission against Corruption (ICAC) in Hong Kong, we find that there are almost daily meetings of the authoritative group directly under the commission looking into the complaints that are being received afresh. 

The ICAC looks into whether, according to the information provided, there is a manifestation of the elements necessary for proving any of the offences recognised under the Bribery and Corruption Law being present in each of the complaints. At that stage, if a complaint does not reveal anything that could lead to an investigation into any of the offences, then they would be excluded from further investigations. It is to be assumed that when such a decision is made, a note will be made in the file as to why it was decided not to proceed any further with this as regards an investigation into that particular complaint.

Then, there may be those complaints which may not clearly establish approvable evidence in a complaint but may reveal that a preliminary inquiry of a fact-finding nature may be necessary in order to see whether there is a reason to further pursue such a complaint into an investigation. In this case, the officers of the commission authorised for this purpose would make discrete inquiries just to see whether there is good enough reasons to go into this complaint by way of a professional criminal inquiry.

If the preliminary inquiry reveals that there is no basis for searching, then, once again, no further inquiry would be made into such complaints and the reasons for that would be stated by the officers for the perusal of the commission and this should be recorded in the files.

The third category is where the seriousness of the revealed fact/s compels the commission to order a thorough criminal investigation through the officers of the investigating units of the ICAC to further investigate with the view to collecting evidence about the alleged offence complained about in the complaint. 

This would be a process of thorough criminal investigation in which the different units which are trained for investigation into various aspects of a crime, begin to investigate and collect evidence that could be led if a trial is undertaken on the basis of an indictment about such offences. All the procedural requirements of the criminal procedure will be observed and all evidential rules would also be observed. 

Very often, as some of the offences relating to corruption require a great deal of information on technical matters, officers qualified and trained in those special areas of forensic investigations will make use of the expertise available, and all such aspects will be investigated. 

The technological needs of such investigations such as for example, large numbers of documents that have to be copied in order to ensure that these documents are not destroyed for the purpose of obstructing the investigations and even very large numbers of sophisticated photocopy machines and other technological assets will be used in order to ensure that all the available evidence is gathered as well as protected, for the purpose of the trial. It is after this whole process is completed that the process of indictments being prepared is done and the matters are referred to the court for trial.

Thus, investigations into complaints constitute a sophisticated process and also provide for the protection of the individuals from those who may try to abuse the corruption related legal processes without basis in order to harass various persons. In this way, particularly the possibility of the politicisation of the process and the use of corruption related work purely for extraneous purposes could be prevented. 

On the other hand, via investigations done by persons with training, knowledge, experience, and integrity, a thorough process of investigation could be done and all the evidence could be gathered and protected to face up to a trial.

It is clear from the reports that we have of the trials which are going on in many of the cases in Sri Lanka and the vast number of complaints which are reported to have not been investigated at all that many extraneous factors play a major role in deciding as to whether a complaint will be investigated or not. 

One of the publicly discussed issues is that when complaints are regarding powerful persons, particularly politicians, it is almost a rule that many of these complaints are not investigated in truth. Despite an overwhelming amount of publicity given by the media and also the mentioning of these matters even in Parliament or in select committees, a large body of information which is available about the commission of offences related to bribery and corruption goes uninvestigated. 

There is yet not a single case in which a very senior level of politician has been found guilty of a bribery related charge. That the selection of cases for investigation itself is highly selective and not based on the considerations relating to criminal investigations is quite a theme in the public discussions.

Rights of the complainant/accused 

This could be illustrated in two ways. One is a complainant who makes a series of complaints against several judges, alleging corruption on the part of some of them. However, after several years, there has been no recording of any statement from the complainant nor any other indication as to what happened to the complaint. Thus, the complainant has complained many times that his complaint has not been investigated as required of an investigation into a crime. 

There are many such allegations of complaints made but no investigations having been done. If the investigations have not been done for any defects of the complaint, then the rejection of the complaint should be informed to the complainant. According to the public allegations by these complainants, they have never been informed of such complaints. 

The second category of the problem is that a complaint against a former District Judge had been made some 11 years ago. According to this former Judge, in terms of the papers he had filed later in the Supreme Court (SC) on the violation of his Fundamental Rights (FR), the reason for filing a charge against him had been baseless and had been done as a malicious act by someone higher up who wanted to stop him continuing in his employment. 

The allegation was that he had some monies which were beyond his known income. He had been asked to give an explanation and the Judge had given a detailed explanation of the manner in which he had legitimately come into his income and all the questions that were raised had been answered thoroughly. Thereafter, the investigation abruptly stopped.

However, despite the investigation abruptly stopping, it had not been withdrawn and therefore, for official purposes, the investigation was treated as if it was going on.

After waiting for four years, constantly reminding the commission about his case and also the adverse consequences that he was suffering due to the continuity of the investigation such as it affecting the possibility of his promotions as he was nearing the retirement age, no response had been received from the commission. The District Judge had then gone to the SC and complained that the undue delay of bringing the inquiry to an end was a violation of his FR to have a fair inquiry and therefore a fair trial.

Notice had been issued to the commission and the commission had sought time from the SC to file an answer to this petition. After granting several days, the SC had finally refused to grant further dates and fixed a final date for filling answers by the commission against the Judge’s request.

However, the commission had not filed an answer and, instead, it had filed an indictment against the District Judge in terms of the former inquiry which had not revealed any factual information as to the commission of any offence by the District Court Judge.

Now, six years have lapsed since the filing of this indictment and a trial is going on even to date. No evidence of proof of any illegally obtained monies had been led and the evidence that he (the District Court Judge) had given about the manner in which he legitimately came about his earnings had not been rejected.

Now, these two instances show that both the complainant and the accused could suffer very seriously due to the failure of the commission to ensure a fair inquiry in terms of the relevant laws to ensure such a fair inquiry. The courts have consistently held the right of individuals to a fair inquiry. This has been held as a right of both the complainants as well as the accused.

The arbitrariness with which the complaints have been dealt with is one of the major problems that exists within the manner in which inquiries are conducted into the complaints that are made to the CIABOC. The statistics published by the commission itself show that while thousands of complaints have been made, indictments have been passed only in a relatively small number. Even where indictments have been passed, cases have been carried on over a long period of time. The result is that the conviction rate is almost negligible.

The commission’s statistics also show that from 2021 up to 2023, over 6,000 complaints have been made.

Clearly, in terms of the rules relating to a fair trial, such a long delay in the investigation itself is a basic violation of the rights of all the parties involved and is also an indication of criminal inquiries which are conducted negligently and arbitrarily. 

This remains one of the major problems relating to dealing with the prevention of corruption.

(The writer is the Policy and Programmes Director of the Asian Human Rights Commission)

(The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.)