Fighting corruption: Why give MPs an escape route?

The Cabinet of Ministers this week nodded its approval for an Anti-Corruption Bill even though some of them may have privately wondered if they were shooting themselves in the foot by doing so. The preamble of the proposed law is to give effect to the United Nations Convention against Corruption and other internationally recognised Best Practices: to appoint an independent commission to detect bribery and corruption; to prevent such crimes; to institute prosecutions and to bring the existing laws on the subject under this law and close down the Bribery and Corruption Commission (CIABOC) in the process.

Among its noble aims, at least on paper, are to promote transparency in governance, increase accountability and enhance public confidence in the government which is at a rather low ebb now.

When the CIABOC was introduced in the backdrop of systemic corruption over a decade ago, and public agitation like now called for an independent body to probe corrupt goings-on in high places, there was a great sense of joy that a speed-bump was installed to stop runaway graft by politicians and officials.

Within no time, however, the Commission turned into a joke, the main prosecutor himself subjected to accusations and purportedly independent commissioners beholden to the politicians who appointed them. The law itself was flawed and well-known crooks from Cabinet Ministers to Treasury Secretaries got off the hook on legal lacunae, then coming out to say they had been ‘cleared’ of all charges.

So, when the proposed law also mentions an independent commission, one has to take it with more than a pinch of salt, for all depends on the appointees and their independence. Last Sunday’s conduct of the chairman of the independent Police Commission which the media widely reported was a classic example of what the current independent commissions have become.

A common grumble of citizens was that their complaints to the CIABOC were thrown out without informing them of the specific reasons or status of the investigations. The secrecy clause in the CIABOC Act is invoked when complainants want to know why their allegations have been dismissed.

Where is the guarantee that a shiny new law with dazzling promises of ‘giving effect’ to the UN Convention against Corruption will change this miserable history? On the face of it, one undeniably positive step is the contemplated repeal of 1970’s Declaration of Assets and Liabilities law. That law’s criminalisation of public disclosure of the assets of inter alia, politicians and public servants went a long way towards aiding the culture of impunity.

The proposed Anti-Corruption Bill provides that, a redacted version of assets declarations will be publicly accessible through the website of the central authority established under it. The head of the authority will be the designated officer under the Right to Information (RTI) Act. It is fitting that the most senior person will be responsible for establishing that the institution acts in line with the requirements of the RTI Act when responding to requests.

Clearly, the Government is responding to the public mood. That too when two decisions of the Right to Information Commission ordering the release of information relating to the assets and liabilities are pending determination in the Court of Appeal. Varying punishments are prescribed if relevant persons fail to declare their assets and liabilities, ranging from fines to jail terms of one year. To that extent, this law reform effort is commendable.

The new anti-corruption body is given suo motu (acting on its own motion) authority to investigate allegations of offences of bribery and corruption along with a wide array of investigation powers including surveillance powers as well as search and arrest powers. Hefty penalties follow if convictions ensue.

But conferral of suo motu power does not automatically lead to efficient working of the anti-corruption system. Even when the current CIABOC had suo motu powers to investigate complaints under the 19th Amendment to the Constitution, that power was rarely effectively used. The proposed Bill also proposes that, if an offence is disclosed through the reports of Commissions of Inquiry, action may be taken in terms of the new law. Similar prosecutorial powers were vested in the Attorney General through amendments to the Commissions of Inquiry Act. One does not find any remarkable instances of that discretion being used to nab the corrupt.

The lesson that all this teaches is that laws do not perform miracles if institutions and their officers are liable to political pressure.

To its credit, there is protection for whistleblowers in the Bill. This has been a long-felt need in Sri Lanka. Yet, some clauses stand at odds with its objective of tackling bribery and corruption. One is Clause 93 which relates to the definition of the offence of bribery and corruption which states, however, that it shall not be an offence for ‘any trade union or other organisation’ to offer to a Member of Parliament (MP) or for such MP to accept any allowance or other payment solely for the purposes of his (or her) 'maintenance’.

From where did this exemption spring, one must question, for it leaves a side-door open for MPs to escape accusations of ill-gotten gains. The law will become a joke if such exemptions and loopholes are provided to MPs who are on the frontline of corrupt activity. These are not good precedents to set.

The Bill’s clauses regarding tackling high international money laundering crimes must be strengthened. Recovering monies from foreign offshore banks will require international litigation efforts. Like the Government has hired foreign firms for its debt-restructuring efforts, any prospective initiatives for assets freezes, tracing and so on, it must look to engaging foreign experts. Today's big-time bribery and exchange of money take place in Singapore and Dubai, not in Colombo.

For this, the proposed commission -- and the Government -needs to venture into a high degree of training and large budgets are required if they are serious about anti-corruption mechanisms. That would signal the sort of mature State response required rather than paying mere lip service to bribery and corruption that presently nets only the 'sprats' like a school principal or police constable, but not the 'sharks' who milked this country dry then, and continue to do so even now.