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 COPE(ing) with conflicts of interest

COPE(ing) with conflicts of interest

22 Nov 2023 | BY Sumudu Chamara

A ruling Sri Lanka Podujana Peramuna (SLPP) Parliamentarian, who many knew first as an economist and then as a politician who maintained a relatively low profile until he assumed the Committee on Public Enterprises (COPE) Chairmanship, is now at the centre of controversy. Issues surrounding him, which began with him displaying signals during a COPE meeting attended by the Sri Lanka Cricket (SLC), allegedly in a bid to prevent the SLC officials from revealing certain matters, have now resulted in the indefinite suspension of the COPE’s meetings, and most importantly, public furore against him. What is more, the public question on social media as to whether and to what extent the COPE can be relied upon when its members have shown clear signs of the presence of personal biases, which in turn has raised questions about the fulfilment of the COPE’s roles and responsibilities which concern a large share of the public sector.

To make matters worse, as Prof. Ranjith Bandara’s controversy developed, Opposition and Samagi Jana Balawegaya (SJB) Leader Sajith Premadasa charged in Parliament that the questions relating to the former’s trustworthiness are actually a case of conflicts of interest. Premadasa claimed that Prof. Bandara had provided consultancy services to the SLC in the past and that a company owned by Prof. Bandara had provided similar services to the SLC and certain other bodies, and that he had evidence to prove those links. Premadasa further questioned whether Prof. Bandara should be allowed to continue to serve as the COPE Chairman, in a context where the latter has not revealed links to the SLC and is tasked with looking into the operations and irregularities of the SLC as the COPE Chairman. 

Conflicts of interest in law

Although the concept of conflicts of interest is self explanatory, how various parties define it slightly varies depending on the context. In the case of Prof. Bandara, who is a public representative entrusted with the leadership of a committee of vital importance, we can look at the definition provided in the Commission to Investigate Allegations of Bribery or Corruption’s (CIABOC) handbook on rules on conflicts of interest. It says that a “conflict of interest occurs when a public officer’s ability to make an impartial decision with regard to his/her public responsibility is affected by his/her personal interests”. Adding that this principle is a simple one, the definition further reads: “When a public officer is making a decision at work, he/she should only be influenced in that decision by factors that are genuinely relevant to the decision at hand. The employee should not be influenced by, for example, the impact that it might have on him/her, his/her family members or his/her friends. The only motivation has to be public interest, not private interests”.

However, with the enactment of the Anti-Corruption Act, No. 9 of 2023, cases of conflicts of interest are now part of the country’s anti-corruption drive as well. The Act, in Section 107(1), says: “Where a public authority in which a public official is a member, director, or employee proposes to deal with a person, company, partnership or other undertaking in which that public official or a relative or associate of such public official has a direct or indirect interest, which interest is within his/her knowledge of that public official, shall forthwith disclose to that authority the nature of such interest in the manner as may be prescribed by regulations”, while Section 107 (2) reads: “Where a public official or a relative or associate of such public official has a personal interest in a decision which a public authority is to take regarding a person, company, partnership or other undertaking, that public official shall not vote or take part in any proceedings of that public authority relating to such decision”.

As per the Act, any public official who contravenes the provisions of subsections (1) or (2) commits an offence, and shall, on conviction by a High Court, be liable to a fine not exceeding Rs. one million or to a term of rigorous imprisonment not exceeding seven years or to both.

Similar laws and regulations with regard to conflicts of interest exist in the international context as well.

Ethics, evidence, and logic

While laws, regulations and policies discuss extensively about the concept of conflicts of interest, according to international legal experts, it is more of an ethical concern than a legal matter. It becomes a clear legal matter only when substantial evidence has been presented to prove that a conflict of one’s interests adversely impacted a duty that had been imposed on them. On the one hand, there are practical difficulties in accurately gauging a person’s interests, loyalty, and intentions. On the other hand, factors that may create a conflict of interest are not always obvious or are limited to interests such as personal relationships or business dealings. Therefore, they point out the importance of dealing with conflicts of interest as a matter of ethics.

While conflicts of interest have the potential to cause issues, it is important to question as to whether such a potential necessarily causes issues, and if it does, to what extent. Prof. Bandara and the company allegedly owned by him are said to have provided consultancy services to the SLC, which seems to be a considerable concern when it comes to the Prof. Bandara led COPE’s activities concerning the SLC. The current state of the SLC as far as its reputation and operations are concerned is another reason for Prof. Bandara’s alleged conflicts of interest to receive this attention. However, whether the alleged links between Prof. Bandara and the SLC are sufficient to establish a conflict of interest is questionable. Prof. Bandara has worked with the SLC. However, does that mean that he is not capable of conducting impartial, factual, and logic-based COPE proceedings concerning the SLC?

The hand signal that Prof. Bandara displayed in the presence of the SLC at the COPE is subjective, firstly because we do not know for certain whether that was meant to be a signal at all, and secondly, because we do not know what it meant, if it actually meant something.

However, with regard to one fact, we can point the finger at Prof. Bandara without a doubt. That is, as per Premadasa, regarding Prof. Bandara’s failure or unwillingness to reveal his past or present links with the SLC. Prof. Bandara is the COPE Chairman and an economist, and both these roles often discuss matters of conflicts of interest. He should be well-aware of the potential for a conflict of interest to occur when he leads the COPE that is questioning the SLC, and should have been more open about it. Perhaps, had he done that, the opposition that he is facing from the public would have been less intense, and his failure to disclose it makes him look guilty in the court of public opinion.

Public trust in the COPE

“How can we keep the slightest hope that the COPE would discharge its duties in a manner that benefits the public, when the conduct of many MPs in it is already in a questionable state? Keeping high hopes about not just the COPE, but any entity that is controlled by politicians is a silly thing to do,” one comment on  X (formerly Twitter) said about the controversy around Prof. Bandara.

The COPE is one of the most respected bodies when it comes to the public sector. During the past few years, it has conducted proceedings concerning a number of large scale matters of national interest. Even though many of the COPE’s recommendations, directives, and suggestions have been ignored by public institutions, a large number of irregularities and inadequacies in public institutions have come to light thanks to the COPE. It should not remain suspended indefinitely.

In this context, as urged by Premadasa, it is crucial to investigate the conflict of interest charges against Prof. Bandara swiftly. The relevant parties, especially the Parliament, should take the allegations against Prof. Bandara seriously. Those who investigate these allegations should keep in mind that these investigations concern the COPE, which in turn concern the public sector and public funds. While deteriorating trust in politicians is not new to Sri Lanka, for the COPE’s work to be taken seriously by the public, the relevant authorities should restore this lost faith. The best way to do it is by ensuring that the COPE’s members, including its Chairman, behave in a manner that is transparent and impartial. As has emerged in Prof. Bandara’s case, perhaps, the COPE should pay more attention to conflicts of interest, professional conduct, and ethical concerns pertaining to the functions of the COPE in the future.

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