Speech delivered by Chief Justice Asoka de Silva on Anti-Corruption Day.
It is noteworthy that corruption has been on the increase, since the globalization of economy in modern times with its derivatives of trade liberalization, materialization and privatization.
When one looks at Sri Lankan political history the words ‘bribery and corruption’ play a big role during the parliamentary elections. Politicians and political parties come out with anti corruption slogans and throwing allegations against each other. But after the elections everything is forgotten and all continue with what they had been doing and victorious party will share the bigger slice of the cake.
The Hong Kong Chief Justice once in an address on bribery in 1988 tried to define bribery as “a gift to any person in office or holding a position of trust with the object of inducing him, with regard to his official duty, into betraying his trust for the benefit of the giver.”
It is widely accepted that in Sri Lankan society bribery is rampant. To curb the menace the Bribery Act was introduced in 1954. Since then there had been nine amendments to the Act to fine tune the law. To ensure that all forms of bribery are covered by the Act it has been suggested that bribery should be defined in broad terms “any person who accepts, solicits, or agrees to accept any gratification, either for himself or another should be considered guilty of bribery. Similarly any person who offers such gratification or promises to offer gratification should be considered to be equally guilty of bribery. Such gratification can be to compel an action or to prevent an action.” “Any person” referred to here should also include an agent, bribery by a agent should also attract the same penalty.
As mentioned earlier, Bribery Act was passed in 1954.
Inadequate laws
Even though bribery was already an offence under the Penal Code at the time the law was enacted as there was a feeling that penal provisions were inadequate to address the question relating to bribery although the bribery was part of the penal law of this country at least three special commissions had been appointed to probe the allegation of bribery in the past. This was because penal provisions applied only to public officials and not to elected officials.
In 1943, the L. M. D. de Silva Commission was appointed to probe allegations of bribery against the State Council Members. In 1948, the Keuneman Commission was established to investigate bribery in several Government Departments and in 1949 the M. W. H. de Silva Commission was appointed to investigate allegations with regard to the Colombo Municipal Council.
The appointment of these commissions of inquiry under the Commissions of Inquiry Law indicate that the provisions of bribery under the Penal Law were inadequate and that the Special Commissions of Inquiry were required to investigate allegations of bribery and corruption. Some of these Commissions of Inquiry had an instant impact as evidenced by the resignation of three State Councillors after the L. M. D. Silva Commission submitted its report.
It is against this backdrop of commissions of inquiry that the Bribery Act was enacted in 1954. The definition of “public servant” under the Act is wider than what was the previously recognized in the Penal Code.
The Supreme Court had the occasion to interpret some of these provisions. In the case of Mohamed Arif vs Qua conflicting opinions were expressed as to whether it covered any work carried out by public servant or whether it related only to official work. A Supreme Court Divisional Bench by a majority decision upheld the broader view.
State officers
State officers were considered to be servants of the Republic other than the President, Minister, Deputy Members of National State Assembly. Even Labour Tribunal Presidents were considered State officers.
The Legislature Members was deemed to be guilty of bribery where such person solicits or accepts any gratification as an inducement or reward for performing an act in his official capacity. In A. G. vs Lim, Privy Council gave a broader interpretation – any act attributable to his legislators position.
The Act No. 20 of 1994 amendment introduced the offence of corruption. Any public servant who causes a loss to any other or to the Government for the advantage of himself or any other person and commits any of the five acts specified under (a), (b), (c), (d) and (e) of Section 70 of the Act commits an Act of corruption.
A legal definition of corruption is both difficult and complex that people would agree that corruption involves the use of public office for the private gain of the office holder. It should not always necessarily involve financial gain. There could be corruption in the form of gifts or favours in kind. For example soliciting and receiving sexual favours could be considered as corruption.
In every country there is corruption. The only difference is that while corruption in developed countries does not lead to people dying, in most developing countries it does, mainly African countries and to the collapse of economy. The debate on corruption has developed greatly and makes evident that the issue is not only one of law but also of the impunity of the perpetration of corruption. Due to the nature of corruption and its diversity it is not easy for a single state to address it properly. Today the impact of corruption are felt due to trade interactions, between States and the development of E-commerce. Corruption is now a common tragedy with little difference between in its magnitude.
Nature of corruption
Corruption is pervasive and has something to do with the inherent egoistic nature of a person. Corruption today is gaining roots in a system whereby a two way traffic network involves bribes and kickbacks. It is also involved embezzlements and spoliation of Government funds, taking advantage of weak legal regimes and weak management of public funds.
Acts of corruption have caused a perception of the meaning of corruption between normal persons while, there is a different meaning for corruption of the elites particularly those in public or business undertakings. Likewise, there is also a misconception of its meaning for the victim of corruptions and the beneficiaries of corruption acts for example, a Minister can deviate a project from one point to another for genuine or vague reasons or another can facilitate some ones aspirations without merit or irregular means. The beneficiaries of such misconduct may simply consider it is worthy while the victims argue it corruption. This shows the flexible nature of corruption.
The meaning of corruption is two fold, legal and social but due to its complex nature they are both covered in the legal framework to ease the intervention process.
As stated earlier corruption is a global phenomenon. These implications bear political, economic, as well as social dimensions. At political levels, it causes an obstacle to democracy and rule of law. Corruption creates a situation of political instability by destroying trust and confidence which are the foundation of political stability.
Economically, corruption ensures selective access to economic opportunities. Certain groups, families and friends enjoy the lion share of the national economic cake. This denies the majority entrepreneur access to economic rights. Most of the money gained through corrupt means in the Third World is immediately smuggled out to safe havens abroad. Thus the money is lost to the country. On the other hand if this money is ploughed back to the domestic productions at least it will have a less destructive effect.
When corruption is rampant and widespread in central and local government machinery, it frustrates all efforts of economic growth and development. Corruption payments made to obtain public services deny the country valuable revenue.
From social point of view corruption leads to inefficiency. More often than to resources are misallocated or misappropriated leading to a direct inefficiency in Government operations.
The impact the corruption causes to State and individuals directly have prompted the need for the international community and its institutions to take collective measures to alleviate corruption.
At international level the effort to fight corruption commend in 1970’s particularly with the enactment of United States Foreign Corruption Practice Act (FCPA). This Act aimed at regulating business as a corruption free environment. By them the multinational companies were the key players in corruption transactions. Hence, the International Chamber of Commerce (ICC) produce a Code of Conduct designed to be adopted by multinational companies and corporations.
The UN on the other hand under its agencies such as crime prevention and criminal justice division made efforts to address several crimes including corruption. In 1975, the conference of the Fifth Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva came out with a working paper. This paper addressed the threat posed by economic crimes including corruption to the development of State.
The UN took an active role in addressing corruption at the beginning of this century. The United Nations Convention against Transnational Organized Crimes (UNCTOC) was adopted by the General Assembly in Resolution 55/25 of November 15, 2000, entered into force in 2003. This convention envisaged criminalization of active and passive bribery involving public officials, or foreign public official or an International Civil Servant as well as accomplices. This convention influenced the coming into being of United Nations Convention against Corruption (UNCAC) (Adopted by UN General Assembly in October 2003 came into force on December 14, 2005).
By this convention States are empowered to determine desirable offences and make them known to other State to attract prosecution of such officials.
Article 17 provides some of the offences that deserve criminalization under corruption transgression. They are amongst others, embezzled, misappropriation of public funds or property, trading in influence. Abuse of functions, illicit enrichment, laundering of proceeds of corruption, obstructions of justice, liability of the legal person under corruption offences, participation and attempt to commit corruptive offences.
UNCAC also provides for civil measures intended to recover ill-gotten proceeds from the corrupt culprits or their beneficiaries. For this matter convention provides for the need to seize, freeze and confiscate the ill-gotten proceeds.
Due to constrains of time I am unable to discuss the convention and the implications fully but must say that International Conventions have so far laid down the basis for corruption interventions.
Political will of the States will have to be exhibited in arresting corruption within its sovereign limits.
The Island 17-18 Dec 2009