Bribery and corruption pervasive malaise in Sri Lanka
by Lakshman I. Keerthisinghe-2017-08-19The great constitutional corrective in the hands of the people against usurpation of power, or corruption by their agents is the right of suffrage; and this when used with calmness and deliberation will prove strong enough.
-Andrew Jackson (American President)
Black's Law Dictionary defines 'Bribery' as "the offering, giving, receiving or soliciting of any item of value to influence the actions of an official or other person in charge of a public or legal duty". The UN Declaration against Corruption and Bribery in International Commercial Transactions defines 'Corruption' as "any offer, promise or giving of any advantage to another person as undue consideration for performing or refraining from the performance of that person's duty, or the soliciting or accepting of any advantage as undue consideration for performing or refraining from the performance of one's duty."
Corruption has been considered as an extension of bribery. Prof.A.D.V.de S. Indraratne a former President of the Sri Lanka Economists' Association (SLEA) speaking of Public Sector Corruption in Sri Lanka at the SLEA annual sessions in 2007 said, "Public officials and politicians fight shy of even mentioning it as a cause of our poverty, and even among us economists, only a very few has shown interest in the study of the nexus between corruption and inequity and poverty." Thus, eradication of bribery and corruption from society coupled with economic development would definitely pave the way to a prosperous Sri Lankan nation free of poverty and its attendant ill effects on society. At the outset it must be emphatically stated that without the requisite political will and resolve, bribery and corruption could never be eradicated from society.
The White Paper (August 2007) prepared for USAID-SRI LANKA titled 'Bribery and Corruption in Sri Lanka : Strengthening the Institutional Framework' states, "It is widely acknowledged that bribery and corruption are rampant in Sri Lankan society. The Parliamentary Committee on Public Accounts recently estimated that corruption in the public sector is costing the country approximately Rs100 billion every year. Yet the institutional mechanisms for dealing with bribery and corruption have failed to have any significant impact on reducing either practice. Some low level officials have been prosecuted over the years but very few of the 'big fish' have been brought to task."
CIABOC
The Commission to Investigate Allegations of Bribery or Corruption (CIABOC) was established by Act No. 19 of 1994 to provide the establishment of a permanent Commission to Investigate Allegations of Bribery or Corruption and to direct the institution of prosecutions for offences under the Bribery Act and the Declaration of Assets and Liabilities Law No. 1 of 1975.The first Commission commenced its activities from 15 December 1994.The Commission consists of three members, two of whom shall be retired Judges of the Supreme Court or of the Court of Appeal and one of whom shall be a person with wide experience relating to the investigation of crime and law enforcement.
The Commission which is active at the present time, has the power to summon persons to give evidence or produce relevant documents, to require a bank, Commissioner General of Inland Revenue, other government department, local authority or State corporation to produce documents relevant to its investigations to require any person accused of bribery and corruption to furnish an affidavit declaring his assets and liabilities and that of other members of the immediate family and require any person to make sworn statements regarding such person's assets and liabilities.
Section 7 of the Bribery Act as amended defines corruption as including all mala fide activities including nepotism, misconduct,misuse of information, induced omissions or commissions contrary to law. Gratification is defined in Section 90 as including anything of monetary value or convertible to monetary value, any office or contract, or any other form of protection. The Director General of the Commission is appointed by the President and answerable to him.
Declaration of assets
The other statutes used to combat bribery and corruption include the Declaration of Assets and Liabilities Acts No.1 of 1975, No 29 of 1985 and amending Act No.74 of 1988 which monitor the acquisition of wealth by public officers and politicians, Prevention of Money Laundering Act No.5 of 2006 and the Financial Transactions Reporting Act No.6 of 2006.The office of the Ombudsman and the Constitutional Council established by the 17th Amendment to the Constitution which was mandated to recommend the members to be appointed to the Elections Commission, Public Service Commission, National Police Commission, Human Rights Commission Bribery Commission, Finance Commission and Delimitation Commission tends to depoliticize such appointments which is beneficial to the elimination or reduction of bribery and corruption. The 19th Amendment restored many components of the 17th Amendment letting the Constitutional Council to set up the proposed Independent Commissions.
Sri Lanka is rated as one of the most corrupt nations in the world in spite of the many statutes promulgated to eliminate such corruption. In 2004 the VAT (Value Added Tax) scam uncovered by the Auditor General's Department resulted in the loss of Rs 441 billion to the Inland Revenue Department. Fraudsters obtained vat refunds by producing falsified documents with the assistance of corrupt public officials some of whom are imprisoned. By the registration of cars as trucks with the assistance of corrupt officials the Motor Traffic Department incurred heavy losses as indicated in its 2006 report. The Report of the Committee on Public Enterprises (COPE) exposed many other corrupt practices that have taken place in public enterprises, resulting in heavy losses in revenue.
Monetary Board
The failure to take action by the Monetary Board of the Central Bank of Sri Lanka (CBSL) against many bogus finance companies affected the economic stability of the country. The COPE found fault with the Board of Investment, Aviation Services Ltd., Sri Lanka Ports Authority, Samurdhi Authority, Ceylon Electricity Board and the Bank of Ceylon among other enterprises for engaging in corrupt practices and / or mismanagement.
Sri Lanka's corruption index (Transparency International) in relation to other countries in 2016 has risen to be ranked at 95 when compared with 2014 at 85 and 2015 at 83 in spite of the establishment of the Yahapalanaya or good governance regime. It is obvious that by the end of 2017 this rank would invariably be raised further. 'The Indian Express' reported on 9 December 2016 that President Maithripala Sirisena had stated, "Half of Sri Lanka's public procurement contracts are tainted by bribery and corruption," nearly two years after he came to power promising to tackle government graft. "I regret to say that organized bribery and corruption are still taking place in government institutions," the President told a public meeting of Police and anti-corruption activists in Colombo. "We say call tenders to prevent corruption, but in reality we know that the tender procedures are also corrupt. It happens in over 50 per cent of the time." In recent months the President has made several outspoken criticisms of the National Unity Government under Prime Minister Ranil Wickremesinghe, accusing top anti-corruption officials of launching politically motivated prosecutions. The recent resignation of Ravi Karunanayake, former Minister of Finance and later Minister of Foreign Affairs, appeared to be part of the growing crisis over the Central Bank Bond scam presently being investigated into by a Presidential Commission presided over by a panel which includes two very eminent Supreme Court Judges. It is very unfortunate that the genuine efforts of eminent prosecutors in the Attorney General's Department have come under unfair criticism by some affected persons.
In conclusion as Lord Alfred Milner (1854-1929) stated "If we believe a thing to be bad, and if we have a right to prevent it, it is our duty to try to prevent it and to damn the consequences" which should be noted by our leaders tasked with the governance of the country. A former President of India Abdul Kalam has stated, "If a country is to be corruption free and become a nation of beautiful minds, I strongly feel there are three key societal members who can make a difference. They are the father, the mother and the teacher.'
The writer is an Attorney-at-Law with LLB, LLM, MPhil (Colombo)
