Speaker 1  00:11
Welcome to another session with Advocata Studio. Today I have the Deputy Executive Director, Transparency International, and Attorney Atlaw Mahesh Riharath with me.

Speaker 2  00:19
Thank you for inviting me.

Speaker 1  00:20
Thank you for being here with us today. Topic at hand today is the Commission to investigate allegations of bribery or corruption being placed under Treasury-controlled expenditure ceilings and instructions. Section 21 of the Public Financial Management Act of 2024 requires all government entities, including the Commission, to investigate allegations of bribery or corruption, to submit their budget estimates through the Ministry of Finance and comply with Treasury issued expenditure ceilings and policy instructions. This is directly in contradiction with the Anti-Corruption Act of 2023, which mandates that the committee must submit its budget estimates directly and independently to the Parliament, this raises a lot of questions in terms of the Commission's autonomy, independency, and the integrity of Sri Lanka's anti-corruption framework. Keeping this context in mind, I would like to direct our first question to you, which is that could you explain to us in detail the contradiction between the Section 21 of the Public Financial Management Act of 2024 and the Anti-Corruption Act of 2023, and give us a little context as to how this came into being.

Speaker 2  01:28
Thank you. So I will start with the context. So Satya, there are there's an international element to it and a local context that I would like to highlight here. Internationally, there's a UN Convention against Corruption, which is without any doubt one of the most ratified international conventions in the world. So this convention came to operation in 2003, and Sri Lanka ratified it almost immediately in 2004, and committed that we will make sure that our policies and laws will comply with the UNCAC UN Convention Against Corruption principles. So, and and the thing is, this UN Convention has has a very unique peer review mechanism where countries are reviewed by their peers. Okay. So two two countries are allocated to one country, and they review each country against the UNC principles, and give different recommendations To comply, so the Anti-Corruption Act is actually developed in line with most of these recommendations that have been given for Sri Lanka. On a local level, we have had bribery laws since the 1950s. We have the had the Bribery Act, we have the we had the Siabok Act, which sort of focused on strengthening anti-corruption framework in the country, right? But at the same time, there were different issues, issues in implementation, questions about the adequacy of international financial independence, whether the relevant institutions have adequate funding. So those were the questions that we had in the time that we had different anti-corruption laws and policies. So in the recent time, we as a country faces this financial economic crisis. During that time, one of the key reasons that was identified as direct reason for the economic downfall was systematic corruption and lack of transparency and accountability, so the need for a proper anti-corruption act was again come to the forefront. So as a result, this anti-corruption act was enacted. However, the conversation around the need for anti-corruption was there for a long time. This anti-corruption act, the draft was discussed even as long as in 2018, at the time when the national action plan on anti-corruption 2019 and 2023 was being discussed. The draft was also discussed at that time as well, so but what I wanted to say was this economic crisis and the surrounding issues that were highlighted on corruption and transparency sort of pushed the corruption law to be enacted pretty quickly. On the other side, the PFM, the Public Finance Management Act of 2024, had a. Similar sort of background, as you would probably know, in Sri Lanka, the public finance management was managed, sort of like legalised and managed by the constitution, primary and secondary laws. So we, in the constitution, we have the consolidated fund, we have provision for an auditor general to sort of monitor how public finance management is happening, and then we have laws like Finance Act of 1950, 1971. Then we also have laws like Fiscal Management Responsibility Act of 2003, all of which point to the fact that we used to have these different different laws spread out in a in a in the governance space, and as a result, whilst this economic crisis was happening, there was also the conversation that we need better public finance management. As a result, this public finance management act was discussed and enacted in 2024.

Speaker 1  06:03
Okay.

Speaker 2  06:04
So that was the background. And the second question that you asked was, what was the discrepancy between the Public Finance Management Act and the Intercorruption? I think that's

Speaker 1  06:14
the conversation that is in the forefront at the moment. And I think it'll help us to kind of understand what really is the issue behind Section 21 of the Public Finance Management Act.

Speaker 2  06:24
When it comes to anti-corruption agencies, there are certain principles as to how they should manage their funding, how they should recruit their staff. So these are some are mentioned in the UN Convention Against corruption, but one of the internationally recognised set of guidelines is the Jakarta Principles on ACS, anti-corruption agencies, that says that based on subjected to accounting principles and auditor auditing guidelines, an anti-corruption agency should have control of their budget, and at the same time, it also says, based on principles of transparency and accountability, they should also be able to recruit and dismiss their own staff. So those are the sort of like two key principles that anti-corruption agencies, best practices for anti-corruption agencies when it comes to budget and handling their own staff. Now, the Anti-Corruption Act of Sri Lanka actually follows this. The budget estimate of the Bribery Commission is prepared in accordance with the timelines that was given by the Ministry of Finance, by the Bribery Commission, and they need to submit it to the Speaker of Parliament.

Speaker 1  07:46
Okay,

Speaker 2  07:47
the Speaker of Parliament gives it to the Ministry of Finance for their observation, which they need to come back in 10 working days, within 10 working days. After the observations are taken, the speaker tables this in the parliament for the parliament to determine whether the allocated the requested budget is adequate, whether there needs to be any cuts. So this gets subjected to a forum where the opposition and the government also are present in the parliament and debated, and then based on their observation, the budget is set, and then it is set back to the Ministry of Finance to be included into the national budget. So that's how the Anti-Corruption Act

Speaker 1  08:34
2023 functions.

Speaker 2  08:35
Yeah, right. And at the same time, according to that law, it also says they are able to recruit their own staff because for these financial crimes you need experts, you need forensic audits auditors, you need cyber crime experts. I'm just giving examples off the top of my head, and also they should be able to link with international law enforcement bodies and do their work right. So these expertise are needed, and according to the Act, the Bribery Commission are is in a position to recruit them. That's how the Anti-Rupportion Act works. But now, the Public Finance Management Act comes two years after the Bribery Act comes, and it's enacted in such a way. And it's

Speaker 1  09:25
interesting that it comes only after two

Speaker 3  09:28
years. Yes,

Speaker 2  09:30
and and it says that all public institutions need to submit their budget estimates to the finance ministry. Thereafter, the finance minister needs to get the approval for the cabinet from the cabinet of ministers, and then only it goes to the parliament as the normal way that the public institutions work. Right. So now, interestingly, this law also has the section that. All laws that came before this Public Finance Management Act is now repeat like it doesn't apply

Speaker 1  10:09
anymore,

Speaker 2  10:09
but this law applies. So a simple reading of the two laws hand in hand means that the Anti-Corruption Act, which came earlier, is preceded by this law, and the Commission needs to work according to this. In practice, also it has happened like that. Could you give

Speaker 1  10:26
us an example of how it has happened in practice?

Speaker 2  10:30
In the sense, now the commission has been asked to submit it via the because that's how the law is reads. So that is that is the contradiction that is there in the two laws as is now,

Speaker 1  10:45
right? Thank you very much. Listening to you, I realise that there's a lot of functional safeguards provided to commissions such as CIBOC by the Anti-Corruption Act of 2023. So, in preparation for this conversation, I looked at the Commission Strategic Action Plan for 2025 and 2026. Looking at that, I realised that investments are clearly an integral part of the functioning of Commission, such as Seabock. And there was a mention of a development of a case tracking and management system, development of a digital evidence record room, decentralisation of the commission, and etc. So clearly, digital systems, capacity building, establishing a fund for the commission-these are things that seem to be in need of investments. My question to you is: To what extent does subjecting the commission's planned investments to Ministry of Finance approval undermine the functional safeguards provided by the Anti-Corruption Act of 2023.

Speaker 2  11:46
So it's it's like this. There's a as I mentioned earlier. There's a reason why all of these best practices seem to take the bribery commission or the anti-corruption agencies in a country away from the ability for political manipulation, so it's as another thing is that you also need to adhere to these type of best practices because of a very important reason. Because if you do not have this safeguard. The public will also be a little bit worried whether they should, they can come forward without fear of reprisal or hardship or persecution to the commission and make a complaint because if their financial independence is subjected to this

Speaker 1  12:45
parliamentary oversight. Is

Speaker 2  12:47
treated as just another public institution, which goes through the cabinet of ministers for approval. I would, if I was a person who's interested in making a complaint, I would worry. So 100% So so these are the because this type of changes into the law undermines not just the bribery commission but the confidence of the public on those institutions that are actually established to protect them and to ensure that anti-corruption fight remains genuine as we want it to be, so to simply answer your question, the reason why the the budget estimate goes to the parliament is that the parliament are the ones members of parliament are the ones that the public chose, and there's voice for opposition. There's time for debate. It's not a group of MPs from the government who will sit and decide whether the budget needs to be cut. The reasons because public are also watching. No, these parliamentary debates people are watching, so you need to give reasons as to why the budget needs to be cut. So that type of transparency and accountability helps an institution to manage their affairs and to also, in a way, for the point of view of the CBOC, also they are also able to showcase their work and to share with the public what their plan is for the next year, and so so that's how accountability works. So that is why we do not consider an independent institution like the Bribery Commission as a just another public institution.

Speaker 1  14:41
No, 100% And when you talk about anti-corruption, I think in every country, holding powerful actors accountable becomes very, very important. So now, listening to you, and also the premise of this conversation is that the budgetary flexibility of CIBOC. Is in question. So, given that context, what is the effect and impact this would have in terms of the ability of Siaboc to operate impartially, and also most importantly, to hold these powerful actors accountable to their actions?

Speaker 2  15:17
Actually, it is difficult because even though the bribery commission has their own consolidated fund, which they have the authority to establish, there's also provision under the Anti-Corruption Act, which says that investigation for investigations, anything related to investigations, the money needs to come from the consolidated fund. So, all of the progressive things. Even you can argue that even the example that you gave earlier, the case management system, which is very much linked to investigations that they do, because if you are doing investigations, if you are handling complaints, allowing it for to have transparency and accountability, having online platform. All of those matters to investigations, right? And how they manage evidence. You gave that example as well. So, if you do not have money to do that, because you are for for for certain things, you cannot ask development partners, right? Because you need to maintain a level of independence and information. Certain information cannot be shared with everyone. Exactly. So, so for things like this, when you restrict the budget that goes to Sea Ab, what happens is they are unable to invest on those progressive changes. Even the example that I gave, these forensic auditors, even though some cybercrime experts, think people like that, they would not come and work in the bribery commission for free. So they need to be remunerated. So if if the bribery commission does not have money to do that. Unfortunately, investigations will be impacted, and in the long run, it it it is not viable because the commission also is expected to trace the money, work with international law enforcement agencies. So, how do you do that if you do not maintain your human resource if you don't have your systems in in a modern way. So all of this conflict

Speaker 1  17:29
financing does not come from development partners. You have to ensure that the legal environment and policy environment of a country allows to maintain and sustain the independence of commissions such as CIABOK, right? Yeah,

Speaker 2  17:43
and also we cannot rely on development partners always because you know in the world there are so many human rights crises that are happening. So funding is also being very limited. So anti-corruption, I don't think there's a limit, especially

Speaker 1  18:01
in the current climate, funding freeze has been something that has been prevalent, and that is very much the context in which we are speaking. So,

Speaker 2  18:08
and even in a case where there are few wars happening around the world, anti-corruption gets pushed back and gets sidelined. So, the question about funding depend being dependent on outside funding is also a challenge that we all face in the governance sector. So all of these. So

Speaker 1  18:27
even more the reason to revisit Section 21 of the Public Finance Management. Exactly. Right. So I'd like to revisit this argument of fiscal discipline. Right. Somebody in defence of Section 21, might argue or say that the intention behind this provision is to promote fiscal discipline, especially given the fiscal constraints in which we are speaking. Right. So, do you think that there might be some, even some kind of stretched fiscal justification to Section 21 of the Public Finance Management Act of 2024.

Speaker 2  19:05
I mean, there could be people who actually. I mean, it makes sense because the Public Finance Management Act was enacted with a reason, right? And I mean, I, me personally, and we as an organisation, we do not dispute the need for a public finance management act. We, in fact, actually highlighted the need in several advocacy work that we have been doing in the past. But, but having said that, fiscal discipline is still available under the Anti-Corruption Act for the Bribery Commission of the highest nature, because they are liable to the Parliament. Their budget-it's not a case where the budget estimate gets automatically approved. Their budget estimate goes to the Parliament and the Parliament. Sends it to the finance ministry for observation, and with that observation, it's been debated in the parliament. And I would think that if there are any observations in the fiscal sense, those can be raised at ministry level when the observations are sent and even debated in Parliament in in a very open forum, and they can be kept in line. If if you do not see any progress, even you have been given the budget last year, they can actually be questioned, which as it should be. So I don't think even though that argument can be raised, when you really look at it, it does not hold. When that argument does not hold,

Speaker 1  20:51
I also would like to revisit this topic of how you know checks and balances becomes very important in this entire conversation, right? So budgetary independence of CIBOC is clearly in question, and that is what we have established so far. So when budgetary independence of such an important commission is compromised through the law and the policy framework of the country, is there room for such a commission to become a political tool to maybe target the opposition party or someone that you may have a personal grudge with. Can it come to that point, and can it be used as a political tool? And if that happens, what countermeasures should you think that the government should think about or should implement in such an event if such an event is to occur?

Speaker 2  21:47
Actually, that's very important question, right? So when we make laws, I mean, in the limited time that TISL is actually requested to provide input, because in in this country, when laws and policies are developed, there's there's almost zero public consultation, right? Public consultation happens only when a person heads that institution who are okay to talk with the public, who are okay with civil societies working in that. It's very individual based, personality based, so I think one of the reasons why we are in this fix is because these laws were not debated enough. These were not reviewed enough by experts. They were not looked in in a broader context. They were not looked at together. That was not given. That opportunity was missed.

Speaker 1  22:41
So organisations such as Transparency International was not in the consultation process. When when

Speaker 2  22:47
these were the the thing is, it happens in very segmented ways. Siloed,

Speaker 1  22:54
yes.

Speaker 2  22:55
Sometimes there are laws which actually we need to sort of commend where where it's due, right? Laws like proceeds of crime law. There were instances where the expert committee that was appointed did allow for public consultation at the drafting stage. But what usually happens is, the law is drafted, and then it's gazetted, and then you can challenge it within 14 days after it was gazetted, based on human fundamental rights basis, so that scope of effective, you know, constructive input is very limited. So as a result, there are laws which come out. Public does not know anything about it because there was no consultation, effective consulting. It's not. It it's a case where in in this modern world, when there are so many communication channels, just by publishing it in a website that no one goes to, you question whether is that effective pub call for public input, right? When there's social media, when there's like, if you really want public consultation, would you do it? Right. So we need to like inwardly look at ourselves whether we are adequately getting input from public, which could remedy this type of errors, plus improve implementation compliance levels of laws also because when you know the law, actually know the law, people will come, right? So, so the question you asked me was, like, what are the sorry? Remind me the question.

Speaker 1  24:39
No, I said when so when organisations such as yours, when you're not taken into consideration in the consultation process, obviously, yeah, you haven't been taken into consideration, or you weren't part of the consultation process. My question was, when things of that nature occur, when you are over. How do you ensure that this effective communication that you do and the awareness that actually needs to reach the general public? How do you ensure that happens? How do you ensure that the government actually hears your point of view as a stakeholder, as an important stakeholder in these conversations? And how do you ensure the transparency. How do you ensure and retain the fact that you know there is transparency for commissions such as the CIBOC to kind of function within was my question.

Speaker 2  25:31
It's actually very difficult because when we get, as I mentioned, that process, we usually get alerted when a law is gazetted, except in very limited circumstances, which I mentioned to you earlier. Anti-corruption act. We were involved from the very beginning, but when it comes to other laws, as a general practice, we review the law when it's gazetted, right? And we only have 14 days to check whether it complies with fundamental rights, right? Not all issues. We can't fix all issues at that stage. So what we do is we we check that and we check whether it complies with fundamental rights. And if there are and there's an opportunity and there's a potential threat to fundamental rights in the angle of corruption. We challenged it in the Supreme Court, and at that time also, we give awareness to the public as to what this law is and what it seeks to achieve and how it fails if it fails in line with fundamental law rights of the country, so that is that is a very restricted way of doing things. But that's how it has been. So the the best way it would have been is to have broader consultations with experts and with even general public who can point to us, point to the lawmakers how it will roll out in the grand scheme of things in practicality, right? So currently, this is how it happens,

Speaker 1  27:12
right? And I think you know we come to a very important question. I think this is very common in this part of the world: policy inconsistency, right? And that's very evident with what has happened here, because you have this very progressive piece of law coming forward saying the Anti-Corruption Act of 2023, and just two years later, you have the Public Finance Management Act 2024, Section 21, kind of regressing all the progress you made under the Anti-Corruption Act of 2023. Could we speak a bit about policy inconsistency and the speed at which it happens? Right, because you would at least expect the progress that have been made under the Anti-Corruption Act to have at least survived five to six years. But within just two years, you see the progress that has been made

Speaker 2  28:00
just being regressed overnight, immediately you kind of so can we really touch on policy inconsistency and how do you view this as someone who has been you know who has been advocating for transparency for accountability? How do you see this? It's actually it this inconsistencies and the ad hoc nature of lawmaking-it's actually very detrimental. There, we think as in Sri Lanka, we think that if you quickly whip up a law, our issues will go away, and we, as a result, we have a lot of laws which are in the books and not implemented. It's because of the reason why I mentioned earlier. Lawmakers sometimes don't understand the value of getting the public input. They do not see that they have anything to do with implementation, which has a huge issue, right? If there's a law, and we are expected as citizens to know the law, right? Not knowing the law is not an excuse if you break a law. So, I would think that the proactive way to do this would be to consult the public and get their input and give a lot of information about. Look, there's a law that's coming like this. There's a policy that's coming like this. What do you think? Do you think currently

Speaker 1  29:28
there is lack of awareness surrounding Section 21 of Public Finance Management Act and what it has done in terms of transparency and the functioning of commissions such as CABA?

Speaker 2  29:38
There's a huge lack of awareness because until you see the result that it takes, public will be unaware. Because you, this is just this is a like to be honest. This comparing two laws and telling that this is like you know detrimental to the other is looks very legalistic, right? But what we are trying to say is. This has a broader picture that impacts on the society. If you let it be as is without amending the PFM, Public Finance Management Act, to give CIAC an independent institution an exemption,

Speaker 1  30:16
right?

Speaker 2  30:17
Because that was the intention which that Anti-Corruption Act was enacted, and there's a bigger story behind it, right? International obligations, local context. Considering all of that, you give that exemption, understanding why that exemption is needed. So that is very important,

Speaker 1  30:39
right? And I think my final question to you is: Are there any lessons or examples that Sri Lanka can look to in terms of maybe other countries in reconciling public financial management reforms, which is very much needed, and we saw that throughout this conversation, and with independent anti-corruption oversight?

Speaker 2  31:01
I I actually. an example doesn't come to my mind. I think that's a good thing that it doesn't come to mind because I think this type of inconsistency in another country would probably not happen because lawmaking is a different ball game altogether, if I may say it like that, because you need to first see the need for laws. You need to see the like the whether it will be implemented. What is the scope? All of those things need to be considered before you initiate a law, and then the public consultations, and then you know you get the experts, and then you enact the law with a plan and a vision. I'm not saying that the Anti-Corruption Act was not needed. I'm not saying that the PFM was not needed, but that long-term vision needs to be there without quickly enacting laws, thinking that this will be implemented, like this will be effective, so that's another thing that Sri Lanka, I think, lacks. We feel that the moment that a law is enacted, things will fall into place. No, in the fight against corruption, only having laws will not work. You need to, as a government, you need to ensure that there aren't any financial or other burdens in the institutions. You are not giving power with one hand, and you are taking it again with a different thing. You are not crippling independent institutions, not just the bribery commission, institutions like the right to information commission, institutions that are protected, human rights commission. Those are not. Even though they are not, their mandate is not anti-corruption. They play a huge role in the governance landscape. So, if you are really genuine about anti-corruption fight, you need to ensure it's. It will not fix by a law. It will not be fixed by a national action plan. It will be fixed once you allocate adequate resources. It will fix by you giving them the required environment to operate. You not influencing them. That is how anti-corruption has been successful in other countries.

Speaker 1  33:16
And finally, how do you think the government should restore the faith of the general public and the institutions, really.

Speaker 2  33:24
I think, to be honest, we need to see this. We need to depoliticize anti-corruption. It's not. It's. We know that corruption is bad. We don't need a government, whichever government, coming into power and say that it's bad. It is bad, and we, as citizens, we know that it's bad because we were the ones who were standing in these long lines for fuel. We were the ones who were waiting in darkness for electricity to come. We know the consequences, right? We should not politicise this. We, irrespective of Colour party. If anyone does something wrong under the Anti-Corruption Act, they need to go to prison. They need to be convicted for the law of the land. That's there's no question about it. So, so we need to get these things clarified as as people living in this country, so the solution that should happen is finance ministry need to understand the context in which the anti-corruption act was developed. It's not it's not a power struggle. It's not a case where one institution is trying to infringe on another institution's purview. The anti-corruption agencies are placed in a unique position for a reason. It doesn't mean that the one become any less in terms of the work that they do, their importance. So we need to understand it, and I think the institution. Need to have that real conversation without taking so much of time. Now we are in January, so that the anti-corruption fight can go as planned.

Speaker 1  35:12
Thank you very much, Maheshya. We spoke about the independence of the the budgetary independence of the commission to investigate allegations of bribery or corruption being compromised. We spoke about the commission's autonomy, or rather, lack of autonomy, independence, and the impact it would have on the integrity of Sri Lanka's anti-corruption framework. Thank you very much for joining in on these conversations. Stay tuned for more conversations such as this on Advocata Studio.


Transcribed by https://otter.ai