FCID: More questions than answers
The Sirisena regime’s blueprint for good governance—the 19th amendment—places significant emphasis on depoliticizing public institutions. It envisages creating a two-tier system of controls to ward-off political interference—these are the independent commissions (Public Service Commission, National Police Commission, Bribery Commission, University Grants Commission etc.) and the overarching Constitution Council. Basically, by placing decisions relating to appointment, promotion, transfer, disciplinary control and dismissal of personnel in the hands of independent and technical commissions, 19A aims to gradually depoliticize these institutions. This is commendable and should be roundly applauded as it addresses one of the key issues plaguing the country’s public service.
Unfortunately, despite its grand vision for the future, the regime does not seem to apply the same degree of due diligence and political independence to its current decision-making. The establishment of the Financial Crime Investigation Division (FCID)—which is tasked with financial fraud investigation and law enforcement—is a case in point. Far from being apolitical, by selectively targeting key-players of the previous regime, the FCID smacks of political vendettas and score settling. Our problem is not with whom FCID has targeted—they probably deserve it anyways—instead, our problem is with the process it has adopted in doing so. Thus far, the FCID has operated outside the normal judicial process and acted under the direct authority of a Cabinet sub-committee. This, for us, is direct political interference.
In one of our previous posts we loosely compared the relationship between the Cabinet and the Parliament to that between skilled workers (e.g. masons) and the general contractor at a construction site. We argued that the general contractor (the Parliament) is supposed to oversee the work of masons (Cabinet) to ensure that it conforms to the needs of the owners (public). In this instance, placing the FCID under direct control of the Cabinet is like arming the masons with a formidable weapon—and putting its use outside the control of the general contractor. With the masons so armed, the owners may now feel intimidated to complain even if the work is not up to par. Therefore, we see the placing of the FCID directly under the Cabinet’s control as a clear affront to the public’s interest.
This also raises several additional questions. Is the FCID transitory in nature—to investigate the old regime—or is it a permanent institution? If transitory, what exactly is its timeline? What happens once it runs through the full-list of old henchmen? If permanent, what exactly is its span of control and how does it relate to other institutions like the AG’s Department and the Supreme Court? What happens when a new regime comes to power? Can they also use the FCID to harass key-players of the current regime? Would tit-for-tat ‘witch-hunting’ become standard political fare going forward?
We need concrete answers to these questions especially because the FCID operates outside the normal judicial process and denies standard constitutional guarantees (such as due process and the burden of proof etc.) to those under investigation. Sri Lanka has suffered enough under a long string of vague institutions straddling the grey area between formal law enforcement and criminality (the 1990s Bureau of Special Operations under DIG Udugampola, the notorious Fourth Floor of the CID, and the White Van service of the last regime, come to mind) to know that no good can possibly come from yet another institution which occupies this dubious space.