| By
J. C. Weliamuna |
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|
Fighting corruption: Lankan setback and global approach "Corruption of one person by another is as old as human nature itself, and efforts to regulate its perpetration by individuals, government and industries span centuries." The governments, organisations or individuals have not effectively addressed the issue of corruption until recently. An attempt is made in this article to identify some of the key historic developments in Sri Lanka and to understand global trends in the struggle against corruption. Taking Sri
Lanka as an example, bribery was only an isolated offence under
the Penal Code prior to the Bribery Act, without much success of
prosecution. "The plain meaning of the language of an antiquated
statute cannot be given an extended judicial interpretation so as
to cope with modern nature of corruption," said Justice Gratian
in 1948. Of course, both executive and legislature, even prior to independence, genuinely attempted to minimise corruption in Sri Lanka. Whether these attempts were successful was always left to the policy makers. However, some of the important milestones need to be understood if a serious discussion is invited on the topic. The period 1941-1951 was considered a decade of corrupt probes. During this period, the public alleged that certain members of the State Council were corrupt, leading to a resolution being passed in the State Council calling for the appointment of a commission to inquire into charges of bribery and corruption against members of the Council. A commission then found 18 councillors guilty of receiving gratification, forcing some of the councillors to voluntarily resign. Later the State Council introduced Expulsion of Members Ordinance to expel the remaining guilty members. Later, in 1948
and 1949, two inquiries took place with regard to bribery allegations
against members of the public service and members of the Municipal
Councils. With regard to the latter, it was found that 10 Councillors
were guilty of having corruptly received money, gold wrist watches
etc. to vote for a particular candidate in Mayoral Elections. The notable
beginning of legislative attempts to fight bribery and corruption
was the introduction of the Bribery Act, No 11 of 1954. It is interesting
to note that Dr. W. Dahanayake, while supporting the Bill, stated
that a poor peon is a fool if he does not accept a bribe of 5 to
6 rupees and wanted the Government to uplift living standards of
the poor as a measure of eradicating bribery. His speech perhaps
represented the common man's approach then. The Bill was subsequently
passed with a two thirds majority in Parliament. A major change in the bribery law took place in 1994 with the introduction of the Commission to Investigate Allegation of Bribery or Corruption, Act No. 19 of 1994. The effect of this law cannot be understood without reading it together with the news amendment to the Bribery Act, No. 20 of 1994, which was also passed at the same time. The MPs considered the issue of bribery and corruption as a matter of public interest and passed these Bills without any opposition, while acknowledging that the existing legal provisions were ineffective in combating corruption in the public life. In an illuminating
speech, Dr. Neelan Thiruchelvam stressed the need to liaise with
international watchdog bodies such as Transparency International
and to encourage situations of similar watchdogs so that a vigilant
and informed public opinion is the ultimate safeguard against such
abuses. The new Bribery
Commission was thus established with wide powers to investigate
bribery. The offence of corruption was introduced to our penal law.
The Commission was empowered to prosecute offences of bribery and
corruption, independent of the Attorney General. Trial court was
vested with power to seize property in relation to which an offence
has been committed. The three members of the Commission were to
be appointed by the President, and one of the members should be
a retired judge of the Supreme Court or the Court of Appeal. The power of
the President to appoint the Commission was later changed with the
17th Amendment to the Constitution, whereby the recommendation of
the Constitutional Council is a prerequisite prior to the President
making the appointment. Whether the expected impact was achieved
by the 1994 statutes has to be assessed by closely studying objectively
the activities of the Commission but in the public perception, this
has been unsatisfactory. Another landmark
in the legislative struggle was the enactment of the Declaration
Assets and Liabilities Law No. 1 of 1975. Under this Law, Members
of Parliament, Ministers, Judges and Members of Statutory Boards
elected, Members and the Officers of the Local Authorities and several
categories of public officers, candidates of elections, office bearers
of political parties and trade unions, proprietors, editors and
the members of the editorial staff of newspapers and directors of
companies registered under the Companies Act (the specified persons),
are required to submit periodic declarations of assets and liabilities
of themselves and their family members. Under the Commission
to Investigate Allegations of Bribery or Corruption Act of 1994,
the new Bribery Commission is required to investigate assets and
liabilities and institute prosecutions under the Declarations of
Assets and Liabilities Law. If a person is convicted of an offence
of willfully omitting any asset or liability from any declaration
such asset is automatically vested in the State. The whole purpose
of bringing this law was to ensure unauthorised appropriation of
assets which are not commensurate within lawful earnings. On the
other hand, given the difficulty in proving bribery, this law presumes
that unexplainable assets have been accumulated as a result of bribery
or corruption. This law, some
allege, remains another "museum piece of legislation"
because, perhaps, it has not achieved intended result yet. Whether Sri
Lanka has been able to successfully fight corruption needs to be
analysed carefully. Although the issue of the independence of the
Bribery Commission is emphasised, there does not seem to be any
attempt to ensure financial independence of the Commission or independence
of the administration staff of the Commission. Executive control
of its administration remains unchanged leading to open criticism
over transfer of officers or lack of sufficient number of officials
for investigations. Similarly, effective investigation mechanisms
are found wanting to deal with the sophisticated methods of bribery
and corruption in modern hi-tech era. This is one
reason why international efforts in fighting corruption should be
given more heed to in this country. Sri Lanka should take note of
current United Nations General Assembly developments with regard
to drafting a Convention against Corruption as well as the Organisation
for Economic Corporation and Development [OECD] Convention of 1997.
The latter
contains a list of agreed items of preventive and repressive measures
that are both criminal and non-criminal in nature. This Convention
requires parties to take appropriate measures to ensure, among others,
that the proceeds of bribery be subjected to seizure and confiscation.
Consequently European countries have introduced sweeping confiscation
laws. Under the OECD
procedure countries are subjected peer review. The benefits of the
OECD convention is not limited to OECD countries, but extends to
all other countries as well. Non-OECD countries such as Argentina,
Brazil, Bulgaria and Chilli are also parties to the anti-bribery
initiative. Similarly, Sri Lanka should be a party to regional efforts
such as the Asia-Pacific action plan against terrorism. Corruption
is so basic that it can complicate every basic norm in life. No
government has ever fought corruption without the support of the
public. No nation has ever been successful in minimising corruption without commitment by both the government as well as the public including the civil society, business community etc. In the modern world permitting electronic transactions and high commercial activities, it is unimaginable to fight corruption by a country singly without global support. In that context, Sri Lanka needs to be a part of the global fight against corruption. |
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