By Shenali Waduge
All the calls for fairness, justice, integrity are all well and fine but how many in the legal fraternity have publicly questioned the justification of a Member of Parliament, a member of a political party and a practicing lawyer to contest and become the President of the Bar Association of Sri Lanka? How ethical is this and why is the legal fraternity silent?
When a member of Parliament in this case a member of the Opposition is elected to the role of the Bar Association of Sri Lanka where all lawyers are members it raises more than one question.
Is there no conflict of interest when such an Opposition Member whose political role is to oppose the party in Government holds such a post which affects the decisions of the lawyers/judges which certainly upsets the entire judicial system of Sri Lanka?
Is there no conflict of interest when such an Opposition Member holds an important portfolio while also engaging in legal practice and questions how far he is able to use his parliamentary privileges and the ability to obtain important information that is not privy to others?
Is there no conflict of interest when Parliamentarians who are elected by the people to act in the interest of the public indulge in legal practice where they take cases for a fee? Mr. Wijedasa R and a host of other lawyer MPs including TNA Sumitharan needs to offer a valid reply if they believe that there is no conflict of interest in being employed as a lawyer while also being an elected member having to function in the interest of the public?
MPs / Deputy Ministers are all equally guilty of practicing law while accepting a state salary for their role of serving the State and the citizens.
When MPs who are not only drawing a State salary, making use of all State privileges allocated to them, but also practicing and in the opposition are elected to professional portfolios that directly link the legislature with the judiciary it spells catastrophic times for the entire country and certainly questions the dividing lines that should be upheld by all. In the end it is the public interest that is sacrificed.
With Sri Lanka not having any code of conduct in place it is because of these issues with employment by MPs/Deputy Ministers as well as the interests they have directly or indirectly linked to businesses with the state, which affect the people of the country and their interests are compromised. It is not only that, these errors become the source for external forces to tap and make legitimate grounds to prove that poor governance prevails and that the government in power is unsuited to lead.
The case of Philippines serves as an excellent example.
Section 14, Article VI of the constitution clearly states that No Senator or Member of the House of Representatives may personally appear as a counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies.
As such legislators are barred before all courts of justice – regardless of rank. This certainly addresses the issue of exerting undue influence (deliberate or not), upon the body where he is appearing. In the Puyat v De Guzman case, the lawyer-legislator desisted from appearing when his representation was challenged.
With regard to the conflict of interest the provisions in Section 13, Article VI of the constitution clearly declares that No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.
A perfect way to prevent loyalties becoming intercrossed causing controversy.
Moreover, in Section 10, Article VIII, it states that “A member of the National Assembly shall not hold any other office or employment in the government or any subdivision, agency or instrumentally thereof, including government owned or controlled corporations, during his tenure, except that of prime minister or member of the cabinet.
It is when proper ethics, codes are placed applicable to both government, opposition and public officials alike will the present wave of attacks cease as the country would be able to show that it is entering a better climate of governance with checks and balances not relevant to only a select few.
Whilst Public Officials must certainly function within a strict code of conduct there is also a need to have Parliamentary codes of conduct/ethics too which builds greater trust between MPs and civil society. MPs must be aware themselves of what is and what is not acceptable behavior and that they are also accountable and not above any laws. It is when parliamentarians whether they are in Government or Opposition function in corrupt ways and conflict of interest that public opinion about them declines. Therefore codes of conduct are preventive if applied and followed correctly. It goes without saying that any code of conduct forbids certain actions and behaviors, displays ideal behaviors befitting of their position, encourages need to act in the public interest and entails all parliamentarians to disclose their private interests, financial and non-financial relationships through written declarations. In most western nations there is a limit on acceptance of gifts that parliamentarians can receive and are required to report all gifts received above a certain monetary value. Canada’s code of conduct is enshrined in law making it difficult to amend or abrogate and parliamentarians have limited scope to change or avoid the repercussions of their actions.
In Australia which has a federal parliament there are 6 states and 2 territories. Federal parliament comprises 150 members in House of Representative and 76 member Senate. Members of both Houses must report their pecuniary interests within 28 days of taking office –including spouses/dependent children, shareholdings in public and private companies, partnerships, family and business trusts, real estate, savings, sources of substantial income, savings, gifts, sponsored travel.
In Canada there are 10 provinces and 3 territories. The federal parliament has 308 member House of Commons and 105 member Senate. In 2006 the Federal Accountability Act was passed. The Ethics Commissioner became the Conflict of Interest and Ethics Commissioner. This Conflict of Interest Code ensures parliamentarians disclose private interests and certainly should inspire Canadian citizens to question links of Canadian parliamentarians with LTTE front organizations as corruption and bribery is a criminal offence. The Ethics Commissioner has to keep statements confidential but has to prepare a disclosure summary for public inspection.
In Japan there is the 480 Member House of Representatives, and 242 Member House of Councillors. Japan’s National Public Service Officials Ethics Code applies to both public officials and parliamentarians with both having to perform their duties and treat public without discrimination, preference or prejudice keeping private affairs separate from public affairs. There is a long list of prohibited benefits but lacks a mechanism for parliamentarians to declare assets.
In the US which is a federal republic the Congress consists of 435 House of Representatives and 100 seat Senate and both have codes with a set of obligations. There is the Code of Ethics for Government Service in 1958 which requires public officials to put loyalty to country above loyalty to Government (which Sri Lanka needs to adopt). Public officials must uphold the Constitution, laws, and legal regulations, adopt efficient and economical ways of accomplishing tasks, no discrimination or special favors for self or family. The only impediment to US codes is that it is entirely managed internally by House and Senate committees which certainly does raise eyebrows.
In Sri Lanka with a 225 member Parliament there is no code of conduct for parliamentarians though it does have a Bribery Law passed in 1954 and amended several times, the Declaration of Assets and Liabilities Law passed in 1975, the Bribery Commission in 1994 have helped little to curb bribery or corruption.
Any willingness on the part of parliamentarians whether in Sri Lanka or world over must cover their own conduct and first address how law abiding they themselves are. This is why it is essential that ay code of conduct or ethics must be applicable equally to both parliamentarians and public officials alike. Despite the official requirement to submit asset declarations – how many parliamentarians actually do and how many only submits limited assets without divulging their other interests?
Sadly Asian nations may have codes in place but they are rarely used and integrity systems follow a legal mechanism instead of desiring to ethically function in their role. There is actually no requirements for codes if public officials and parliamentarians alike functioned according to how they should. When laws are the only way of forcing compliance it distances people and officials from building a proper political culture especially when parliamentarians jump to hide behind parliamentary privileges. It is pointless to have codes of conduct beautifully tabulated in print if it is not followed by a segment while it has to be followed by another with punitive actions only applicable to a few. Those in government may realize this importance only after they have fallen from their mantle and lost the trust and faith of the citizens but it would be too late. If gift-taking is listed as wrong and both parliamentarians and public officials indulge in same the whole effort to address unethical and corrupt practices is lost and impedes the purpose of building public confidence in their chosen leaders. It also questions whether politicians are even concerned about giving an assurance to their voters once they come into office?
To have a code of conduct or similar mechanism in place the people need to be alert and aware of what the codes entails for it is they who become the source of contributing towards corrupt ways of parliamentarians – the giver and taker are both equally guilty. Sadly, when parliamentarians and public officials function outside of their expected norms it is the public who suffer and the public that serves to loose. Therefore for political representatives to be accountable to the citizens, the citizens must elect parliamentarians intelligently. A code of conduct is not a list of do’s and don’t’s. There must be a vision of how parliamentarians must lead and how they should lead and what would help them lead through the codes that are established. It must be localized to suit national interest and not the interests of the party in power.
While most nations have an active media impartial in their broadcasting – the same cannot be said of Sri Lanka’s media which functions to the dictates of its employers, political favors, international links and even favoring religious and ethnic groups. These are certainly bad ingredients to foster media as a watch dog for the information released to the public is not only biased but also concocted. The day media functions within a proper framework of media ethics, national responsibility and self-regulation it would serve a far better purpose than any state appointed official to act as Ethics Commissioner!
Civil society on its part need to realize too that its role is far more than casting a vote at an election – they must not only be aware of the laws and regulations in place but also make sure that they themselves do not contribute towards corrupt practices. Even the best of codes for parliamentarians will not work if civil society also misbehaves. At the end of the day the exercise of good ethics, behavior and actions is one in which all the stake holders in a country are equally accountable and must contribute towards – no one is exempted.
As for officials they are expected to know where conflicts of interests arise instead of having to be told so. Being learned people they must know not to abuse the systems especially those that belong to the legal fraternity in view of their knowledge of the laws in place.
In the case of the present crisis while no one should be above the law, everyone should have a fair trial and everyone must have their due justice.
The current scenario however calls for the legal fraternity to provide answers to the public on how it has chosen an Opposition MP to become the Bar Association President when the conflict of interest likely to arise is nothing anyone can deny or disregard.
This is a major folly that needs to be addressed because it is likely to affect the entire judiciary – lawyers and judges alike ultimately affecting the Sri Lankan citizenry who end up the gullible victims unless they too open their eyes.
The views expressed are the author’s own.