Mind-boggling Anti-Corruption Act
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It was a mind-boggling discussion! When the Sunday Times Business Club (STBC) on Monday organised a panel discussion on the Anti-Corruption Act No. 9 of 2023 and its impact on the private sector, the presentations by Ms. Sankhitha Gunaratne and Ms. Michelle Handy, two senior researchers from Verité Research, were excellent but surprisingly there were few questions from the audience.Why? “Maybe we were confused. We had always attached bribery and corruption to the public sector. We never thought of bribery and corruption in the private sector and coming with stiff penalties including a jail term,” said one STBC member.
Not many people in the private sector, it appears, are aware that there is a new law to tackle bribery and corruption in the private sector. There was a case some months ago where a private sector official was hauled up before courts accused of a sexual bribe. It was, however, unclear whether this case came under the Anti- Corruption Act or some other legislation. What is also surprising is that key chambers of commerce and industry have not thought it fit to create awareness among its members of the significance of the new Act and the implications on the private sector particularly on the wide definition of the term ‘gratification’.
The need for more awareness among private sector stakeholders was widely discussed at Monday’s STBC session, which is probably the first instance where a private sector body or association had thought it important enough to start a conversation on this law and its implications on those working in the private sector and this includes SMEs.
Given its significance and importance, I reached out to ‘human resource’ pundit HR Perera, popularly known as HR, on Thursday to consider his views on the issue with the expectation that he, coming from the HR community, would be aware of this new law. “Hi HR, how are you,” I asked. “Fine, fine…..long time no see,” he replied.
“Well I was wondering whether you have heard about the new Anti-Corruption Act and its implications on the private sector,” I said. “What Act? I thought the law pertaining to bribery and corruption was confined to the public sector,” he said.
“You are sadly mistaken. The 2023 Anti-Corruption Act also covers the private sector and demanding a ‘gratification’ is a serious offence,” I said. “Opps…we seem to be missing something significant,” he said.
The new law is daunting. It provides for seizure of property and freezing of bank accounts for offences under the Act and on conviction by a High Court be liable to a hefty fine not exceeding Rs. 1 million or to a term of imprisonment not exceeding seven years or to both – fine and imprisonment.
It provides for the introduction of codes of conduct for prevention and eradication of bribery and corruption which shall be adhered to by the private sector entities in order to develop proper conduct of business for the promotion of good commercial practices; and take measures to prevent corruption in the contractual relations between government and private sector entities. Under the Act, the (Bribery) Commission may, in an investigation, use any investigation technique including the following: surveillance and observation; undercover operations; video recording; and use of bugging devices.
The private sector is two years late in taking cognizance of the Act and needs to up its game by launching awareness programmes and explaining the offence of ‘gratification’ under the Act. One of the issues that was informally discussed at Monday’s session was whether a senior executive taking a colleague for a ‘drink’ could be constituted as a ‘gratification’. Then what about hampers being distributed during seasonal celebrations? Is that a bribe or does it constitute gratification under the Act?
In its reference to bribery in the private sector, the Act stipulates that any person who, in the course of any economic, financial or commercial activity, offers, directly or indirectly, a gratification on behalf of himself or another person to any employee in any capacity or a director in a private sector entity, in order to commit any act or refrain from committing any act in breach of his duties, commits an offence of bribery under this Act.
An employee in any capacity or a director in a private sector entity, in the course of economic, financial or commercial activities, solicits or accepts, directly or indirectly an advantage, for himself or for another person, in order to act or refrain from doing any act in breach of the duties of such employee or director, commits an offence of bribery under this Act.
Gratification is described under the Act as “money or any gift, loan, fee, reward, commission, valuable security or other property or interest in property of any description, whether movable, intangible and unreal or immovable. Money includes currency which is in digital or virtual form recognised as legal tender, whether or not such currency is recognised in Sri Lanka”.
Under the National Anticorruption Plan (NAP) for 2025-2029 by CIABOC (Bribery Commission), there is provision for ‘Stakeholder National and Regional Consultation’ and to publish and circulate NAP with all relevant stakeholders. This is where the private sector’s role is essential – in conducting its own awareness programme enlisting the support of CIABOC and even agencies like Verite Research which have covered a lot of ground in this area.
Phew! What a morning, concentrating on a serious topic that has not drawn any worthwhile attention from the private sector, particularly the chambers of commerce and today’s discussion by Kussi Amma Sera would hopefully be a wakeup call.
As I walked to the kitchen to pick up my second mug of tea, I couldn’t help hearing the conversation, through the kitchen window, by the trio seated under the margosa tree.
“Mae davas wala deshapalagnayo saha rajayey niladharinwa ath adanguwata gannawa allas-dushana chodana matha (These days many politicians and public officials are being arrested for corruption),” said Kussi Amma Sera. “Egollo hirey yavida-nedda kiyana thiraney balapanney, egollanta viruddawa policiyata honda naduwak thiyenawa nam vitharai. Nathnam egollo nidos wenawa (Their conviction depends on whether the police have a solid case against them or they will be acquitted),” noted Serapina. “Eka deyak pahadilie – aanduwa thadeta viruddai allas-dushana walata (One thing is clear: The government is strongly opposed to corruption),” added Mabel Rasthiyadu.
Be that as it may, Monday’s discussion on the Anti-Corruption Act was a reminder to everyone working in the private sector to be aware of the new law. The question is: What constitutes a bribe? Will providing a gift to a colleague also be considered a gratification?
It is incumbent on the chambers to get into the act along with CIABOC and organise a series of awareness seminars explaining its implications so that people are not caught napping by the new law. After all ignorance of the law is no excuse!
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