The inscription carved on the base of the Statue of Dr. K. Nkrumah outside the Law Courts in Accra, Ghana says: “Seek ye first the kingdom of politics and all else shall be added unto you! ” Citation from the Mahawamsa – ‘The Great Chronicle’ written in Pali recording the history and heritage of Sri [...]

The Sundaytimes Sri Lanka

Some thoughts on corruption

UN Anti-Corruption day falls today
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The inscription carved on the base of the Statue of Dr. K. Nkrumah outside the Law Courts in Accra, Ghana says: “Seek ye first the kingdom of politics and all else shall be added unto you! ”

Citation from the Mahawamsa – ‘The Great Chronicle’ written in Pali recording the history and heritage of Sri Lanka from 543 BC:
” ….. The ruler’s trusteeship of the resources of the State which belong to the people is a part of the legal heritage of Sri Lanka dating back at least to the third century BC as pointed out by Justice Weeramantry in his separate opinion in the International Court of Justice in the Danube Case, by quoting the sermon of Arahath Mahinda to King Devanampiya Tissa as recorded in the Great Chronicle”

Article 28(d) of the Constitution:

“28. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly it is the duty of every person in Sri Lanka –
(d) to preserve and protect public property, and to combat misuse and waste of public property; ”
“Cicero and the fall of the Roman Republic”, by J.L. Strachan-Davidson, M.A., Fellow of Balliol College, Oxford, in a prognosis on Society, in an Address made by Cicero, as far back as 80 B.C. -
“Men of wisdom, men endowed with the place and the power which you occupy, are bound to apply the appropriate remedies to the disease of which the State is sickening. There is no one of you but knows well, that the Roman people, which formerly had the reputation of being most placable towards its enemies, labours to-day under the curse of cruelty to its own children.”
“Remove this cruelty from the State, gentlemen of the jury; suffer it no longer to work its pleasure in this Commonwealth. It is a vice which is mischievous, not only in that it has swept off so many of our fellow-citizens under every circumstance of horror, but likewise because by the daily spectacle of painful sights it has made the tenderest hearts callous to the sense of pity. For when each hour we see or hear of some fresh atrocity, even though nature has made us mild of mood, familiarity with dreadful deeds plucks all feelings of humanity from our minds.”

“Was it for this that the nobility aroused itself and won back the State at the point of the sword? Was it in order that the menials and lackeys of the great should be able to carry the goods and the honour of us and you alike?”

Robert Klitgard in his book “Controlling Corruption”, dealing with corruption through history had stated thus:

“After all, corruption is as old as government itself. Writing some 2300 years ago, the Brahman Prime Minister of Chandragupta listed ‘at least forty ways’ of embezzling money from the government. In ancient China, officials were given an extra allowance called Yang-lien, meaning, ‘nourish incorruptness’.

Apparently such nourishment often failed to achieve that purpose. Writing in the fourteenth century, Abdul Rahman Ibn Khaldun, said that ‘the root cause of corruption’ was ‘the passion for luxurious living within the ruling group. It was to meet the expenditure on luxury that the ruling group resorted to corrupt dealing.’ Plato talked about bribery in The Laws: ‘The servants of the nation are to render their services without any taking of presents … To form your judgment and then abide by it, is no easy task, and’ `tis a man’s surest course to give loyal obedience to the law which commands, `Do not service for a present.’ – ‘Like illness, corruption will always be with us. But as this sad fact does not keep us from attempting to reduce disease, neither should it paralyze efforts to reduce corruption. Corruption involves questions of degree. Countries and agencies have more and less corruption, and various kinds of illicit behaviour are more and less harmful. We can do better in controlling corruption.”

“The literature on corruption contains several useful definitions. A widely cited definition of “corruption” is:- `behaviour which deviates from the formal duties of a public role because of private-regarding (personal, close family, private clique) pecuniary or status -gains; or violates rules against the exercise of certain types of private-regarding behaviour.’”

The World Bank Staff Working Paper No. 580, on the Effects of Corruption on Administrative Performance, David J Gould and Jose A Amaro-Reyes reported as follows:

“The government monopoly of economic activities in developing countries, when combined with conditions of political “softness” widespread poverty and socioeconomic inequalities, ambivalence towards the legitimacy of government and its organisations and systematic maladministration, provides fertile grounds for corruption, which … has a deleterious, often devastating effect on administrative performance and economic and political development, for example corroding public confidence, perverting institutions’ processes and even goals, favouring the privileged and powerful few, and stimulating illegal capital export or use of non-rational criteria in public decisions.”

Addressing a Conference in February 1999 on “A Global Forum on Fighting Corruption”, the US Secretary of the Treasury, Robert Rubin made the following incisive assertions – (vide Wireless File – USIA):

“Corruption is very much a social and political issue. An accountable, responsive and honest government is central to a government’s legitimacy and, ultimately, to political and social stability …. In order to succeed in the global economy, nations must be able to attract private capital to foster growth. There are many dimensions to an environment conducive to attracting private capital …. Among these dimensions I would include here is good governance, in particular, effectively combating corruption …. It (Corruption) discourages small business, entrepreneurs, and consumers who simply cannot afford the cost of bribery. It discourages foreign investment. And it damages the respect for law and public and financial institutions, undermines the credibility and effectiveness of both elected and appointed government officials, and creates an environment conducive to crime in the private sector, including organized crime ….”

Kofi Annan, UN Secretary General on the adoption of UN Convention Against Corruption:

“Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security too.

This evil phenomenon is found in all countries — big and small, rich and poor — but it is in the developing world that its effects are most destructive. Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a Government’s ability to provide basic services, feeding inequality and injustice and discouraging foreign aid and investment. Corruption is a key element in economic underperformance and a major obstacle to poverty alleviation and development.
I am therefore very happy that we now have a new instrument to address this scourge at the global level. The adoption of the United Nations Convention against Corruption will send a clear message that the international community is determined to prevent and control corruption. It will warn the corrupt that betrayal of the public trust will no longer be tolerated. And it will reaffirm the importance of core values such as honesty, respect for the rule of law, accountability and transparency in promoting development and making the world a better place for all. ”

Duties and Obligations of State Parties under the UN Convention Against Corruption:

The UN Convention Against Corruption has quite correctly gone beyond the historic offence of ‘Corruption and/or Bribery’ perceived to be only in the public sector. ‘Corruption’, as spelt out by the entirety of the UN Convention Against Corruption, encompasses ‘Corruption and/or Bribery’ in several forms, both in the public and private sectors, and include offences of economic crimes, in financial or commercial activities, money laundering, et al.

Since the UN Convention Against Corruption has been in operation only since the beginning of 2006, the offences coming under the ambit of the Convention, to be combated and prevented, are likely to come under the ambit of several statutes in the respective countries, with different state agencies dealing with investigations and prosecutions thereof, or invariably there would be necessity to amend and/or modify and/or update existing legislation and/or enact new legislation, to comply with the stipulations in and/or obligations under the Articles of the UN Convention Against Corruption; wherein the word used repeatedly has been “shall”, whereby the state parties are compelled to duly observe and perform the duties and obligations on their part.

Also since the ratification of the UN Convention Against Corruption by State Parties had been staggered and/or protracted, the commitment of the statutory authorities of the respective State Parties, and the amendment and/or modification of and/or updating existing legislature and/or enacting new legislation, would be in progression, with such chronology of ratification of the UN Convention Against Corruption. Sri Lanka ratified the UN Convention Against Corruption on 31st March 2004, as the second country to do so!

Thus, the necessity arises for the state parties to develop accountability vis--vis the implementation of the UN Convention Against Corruption, through a continuous recording and reporting system of achievement and/or implementation of the objectives of the UN Convention Against Corruption, broken down into relevant segments of implementation of the necessary legal frameworks, establishment of mechanism and law enforcement authorities and/or agencies for the enforcement of and compliance with the Articles of the UN Convention Against Corruption.

Such a record in respect of each state party ought not only comprise of progress of compliance, but more importantly a time based plan to give full effect to the obligations to be performed under the Articles of the UN Convention Against Corruption, if crruption is to be combated successfully in the world, for the well-being and benefit of humanity at large.

‘Implementation Review Mechanism’ to assess State Parties:

Excerpts from the Statement made by Dimitri Vlassis, Chief, Corruption and Economic Crime Branch, Division for Treaty Affairs, United Nations Office on Drugs and Crime (UNODC) on 4th July 2011:

“Moving to the work of the Mechanism, the Implementation Review Group held its first meeting in June 2010 and kicked off the first year of the current review cycle. Every State Party to the Convention will have an opportunity in the next 3 years to review its implementation of the Convention through a peer review process. As the Convention is the only global legal instrument against corruption, many States in regions that do not have regional or sectoral instruments in this area are being engaged for the first time in this work. This has contributed in turn to shrinking the safe havens for proceeds of crime and to raising awareness of the detrimental effects of the diversion of resources.

The Conference decided to review Chapters III on criminalization and law enforcement and IV on international cooperation in the first review cycle. The domestic implementation of Chapters III and IV is reported on through a self-assessment and then discussed through active dialogue with the peer reviewers. States may request country visits or joint meetings in order to complement the reviews. Final reports are drafted by the experts assisted by the Secretariat, and agreed to by the countries under review.
The selection of States Parties participating in a given year is carried out randomly through a drawing of lots. At its first session, the Implementation Review Group drew lots for countries under review in the first cycle, thus providing all countries with the year in which they will undergo review and enabling them to plan ahead and prepare for their reviews. The Group also drew lots for the reviewing countries for the first year. Each country is reviewed by another country in the same regional group and one from any regional group. A quarter of States parties are under review every year, with two reviewers for each of them, thus involving dozens of countries from all regional groups in implementation work.

Twentysix countries were under review in the first year, a number slightly less than a quarter of total States parties due to the fact that several countries deferred their reviews to the following year. For the second year of the cycle however, we have a full complement of 41 countries under review, only 2 having chosen to defer to next year. At the second session of the Group that met just recently in June 2011, the reviewers for those 41 countries were drawn by lots.

As the outcome of the reviews of the first year are being finalized and we embark on the second year, we have been able to provide the Group with an overview of how the review process worked in the first year and some lessons learned for the coming review. Countries that participated in the first year as being under review or performing reviews reported on their experience to the Group and largely welcomed the work that had been undertaken and the positive and constructive spirit of the reviews as well as their highly technical and detailed character.”

Corruption at highest political levels

One of the most cogent issues, which demand to be reckoned, is that the very implementation of the UN Convention Against Corruption, on the part of state parties, require the commitment of the political leadership and political will of such state parties to effectively combat corruption, with a policy of zero tolerance.

The foregoing may in reality not be easily forthcoming, since the obligations to be performed by the state parties, affect political leaders and politicians, themselves, and their close political associates, defined as ‘politically exposed persons’ (PEPs) in the UN Convention Against Corruption. As to how such ‘phenomenon’ is to be dealt with, is an issue beyond the powers of authority of state agencies.

If state parties to the UN Convention Against Corruption, not only do not perform the obligations on their part to be performed and fulfilled under and in terms of the Articles of the UN Convention Against Corruption, and give effective enforcement thereto, but on the other hand, flagrantly act in blatant violation of the very spirit, principles and stipulations of the Articles of the UN Convention Against Corruption, then the cogent question arises, as to how state agencies could deal with such calamitous situations ? The only forum for any meaningful action in such context would be the Conference of State Parties to the UN Convention Against Corruption.
It is in such circumstances, that the role that could be played by non-State Organizations and Individuals, who are anti-corruption activists of such State Parties, could come into reckoning, particularly taking cognizance of Article 13 of the UN Convention Against Corruption on the Participation of Civil Society.

World Bank President, James D. Wolfensohn addressing a meeting of the IMF and The World Bank, focusing upon corruption and transparency, emphatically asserted that if there was corruption, the World Bank would ‘black ball’ any project, emphasizing, that eliminating corruption has to commence at the highest levels – “it needs to be cured at the top or that it will not be cured at all”.
Lord Nolan Report to the British Parliament – 1995 on Seven Principles of Public Life

Selflessness

Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.

Integrity

Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.

Objectivity

In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

Accountability

Holders of public office are accountable for their decision and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

Openness

Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

Honesty

Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

Leadership

Holders of public office should promise and support these principles by leadership and example.

(The writer is also a Member of the International Consortium on Governmental Financial Management (ICGFM), and Individual Member of the s International Association of Anti-Corruption Authorities (IAACA).




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