On malfeasance in office

by Malinda Seneviratne
Inspector General of Police, T.E. Anandarajah, is in hot water. His past has caught up with him. Apparently, while he was a DIG, he had partied with a suspected drug peddler, along with several high ranking policemen and their spouses and this has been caught on videotape and cannot be denied. He cannot on this occasion plead "hearsay". Although Anandarajah has defended his presence at this party, saying that he had merely attended a party of a friend’s friend, the Interior Minister has thought the circumstances suspicious enough to order an inquiry.

Anandarajah is not an ordinary police constable. At that time he was one of the most senior officers in the department. A VVIP in fact. Furthermore, as a man whose responsibilities include the protection of the state and its citizenry from criminal elements, one would expect him to be extremely circumspect about whom he chooses to associate, whose gatherings he graces with his presence. One need not ask, "what if he had been shot?" Anandarajah’s story is that it was to honour his hometown friend Udayan that he had attended this party. Udayan, according to Anandarajah, is a jewellery shop owner whom he had known for twenty years. Udayan is such an amba-yaaluwa of Anandarajah that he just could not refuse him. He would put aside, obviously, national security issues (meaning his safety) and blindly follow him to any dingy den. Anandarajah, apparently is not Udayan’s only amba-yaaluwa. Augustus Jesudasan, the wholesale drug peddler, was also his great buddy. The question is this: How could Udayan’s two amba-yaaluwas not know each other or their respective trades?

Udayan clearly knows Augustus Jesudasan’s credentials. He knows Anandarajah’s profile. Anandarajah, given his 36-year long service history, has to be aware of the existence of underworld criminals, those of the upper-world and their associates.

It is strange that he walks into a drug-peddlar’s party with blissful ignorance along with a go-between about whose activities and associates it is hard to believe Anandarajah knew nothing of. Only the super rich can afford a bash at a five-star hotel for a trivial thing such as a little girl’s first birthday. Everyone, including Anandarajah, know who the "legally" super rich are. The rest have to be from the underworld. Did Anandarajah not wonder how Jesudasan acquired his wealth?

None of this matters. What is significant is that Anandarajah has shown to the world that either he’s totally inept as a law-enforcing officer or has acted in contravention of his office, in other words, in conflict of interest.

Anandarajah is a public servant and one who is supposed to bring to book criminals. He cannot be seen hobnobbing with criminals. He cannot serve the public interest and at the same time be a friend to a person or persons indulging in anti-social activities. He cannot be for and against the people. Second, he cannot subsequently accept gifts in money or kind from another for the purpose of undoing what he had earlier been retained to accomplish as a law-enforcement officer, in this case by the state. Third, he may not accept favours from such criminal elements if it involves the use, the appearance of use, or possible use of confidential information received as per his office as a police officer. Such actions are forbidden by the law, legal ethics and in terms of his loyalty to the state.

White-collar criminality

Crime, we have come to learn, has colours. It was in 1940 that American criminologist Edwin H. Sutherland first mooted the term "white-collar criminality". The term refers to illegal acts committed by middle- or upper-class persons in conjunction with their ordinary occupational pursuits. Sutherland argued that important sociological differences exist between conventional crimes such as burglary and murder, which are defined without reference to the social status or occupation of the perpetrator, and white-collar crimes such as fraud, embezzlement, price-fixing, antitrust violations, income-tax evasion, misuse of public funds, and abuse of political and legal powers. In general, the latter are committed by persons of relatively high social status, are intimately connected with the socially approved occupation of the perpetrator, and are treated by the authorities more leniently and inconsistently than are conventional crimes.

What is at issue smacks of what could be termed a white-collar crime. If Anadarajah were a mere constable, he wouldn’t have been invited for Augustus’ party. He was an ex-officio invitee, so to speak. He appears to have abused his political and legal power and compromised state security. He is an upper-class member of society who appears to have committed an illegal act in conjunction with his ordinary occupational pursuits. He would be guilt of wrong or illegal conduct as per his profession. In other words, malfeasance in office.

Anandarajah, unfortunately, is not an exception. It has been revealed that other high-ups in he police had also enjoyed the hospitality paid for by black money. This is not an isolated incident and these people are not random wrong-doers. The Bribery Commission has listed his entire department as being among the top corrupted institutions of the government. If this is what the IGP does and is made of, then why bother talking about his subordinates, one could ask.

Thanks to such blatant acts of malfeasance, the image of the police department has received a severe battering. This naturally has resulted in a loss of faith in the criminal justice system as a whole as the police department is the key link in the chain of justice. It is in part to restore public faith in the criminal justice system and the police department that the National Police Commission was established.

Tragically, the National Police Commission has been rocked by corrupt activities. Although it is widely held that this unsettled situation was caused by the resignation of a commissioner, the fault lines of the commission itself are more fundamental in character. The Chairman of the Commission, Ranjith Abeysuriya, is himself guilty of acts that can be labelled as being in conflict with his status. Just like Anandarajah. He is a practicing criminal lawyer (meaning, he could, theoretically defend those charged with criminal acts, for example, Augustus), who is also a member of a body that oversees the prevention of crime and arresting of criminality in society. This private practice of the law is in direct conflict with his status as a member of the commission.

The president is correct when she chides the Constitutional Council for recommending those who are unsuitable to hold office in the independent commissions. She forgets however that she endorsed the appointment of Ranjith Abeysuriya. One is reminded at this point of the fact that H.L. de Silva resigned from the Constitutional Council under similar circumstances.

With respect to Anandarajah, his tenure will be ending soon. The president, under these circumstances, will be putting her feet in her mouth if she recommends that Anandarajah be re-appointed as IGP. She would do well to remind herself of the letter she sent to the Constitutional Council regarding "unsuitable candidates".

Unusually wealthy

What we really need is a National Counter Corruption Commission with powers and duties to inquire into facts, and decide whether state official has become unusually wealthy, or have committed offences of corruption, malfeasance in office or malfeasance in judicial office in order to take further action in accordance with the law on counter corruption.

And, if a prima facie case is established, the holder of the position against whom the accusation has been made shall not, as from the date of such resolution, perform his or her duties until the Parliament has passed its resolution on the matter. A person who is removed from office in this manner should be required to vacate office and shall be deprived of the right to hold any political position or to serve in the government service for five years.

Unfortunately we don’t have a counter-corruption commission empowered in such a manner. Therefore, if we are to go by her track record, then we can expect the President to recommend the name of Anandarajah to the post of IGP simply because she doesn’t want to be the "stumbling block to peace". She will want to help Ranil Wickremesinghe keep the peace momentum going strong.

Thomas Jefferson once said that every government degenerates when trusted to the rulers of the people alone. Out system is one where institutionally, there is a blind trust in the rulers. We should not be surprised that we have degenerated. It is such a system of blind trust that in the rulers that allowed Shiva Pasupathy to be appointed as the Attorney-General of this country, let us remind ourselves. If this system is not corrected, then it will degenerate, as Jefferson predicts, and we will disintegrate as a nation.