| by Shenali Waduge
( December 22, 2012, Colombo, Sri
Lanka Guardian) 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 MPs 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 MPs 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.
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.
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